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TOWNSHIP DARBY v. WILLIAM A. MCCARTNEY (05/09/79)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 9, 1979.

TOWNSHIP OF DARBY, APPELLANT
v.
WILLIAM A. MCCARTNEY, JR., APPELLEE. WILLIAM A. MCCARTNEY, JR., APPELLANT V. TOWNSHIP OF DARBY, APPELLEE

Appeals from the Order of the Court of Common Pleas of Delaware County in case of William A. McCartney, Jr. v. Township of Darby, No. 17108-76.

COUNSEL

Edward A. Savastion, Solicitor, for Township of Darby.

Michael A. Paul, with him Richard, Brian, DiSanti & Hamilton, for William A. McCartney, Jr.

Judges Mencer, Blatt and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 42 Pa. Commw. Page 531]

The Civil Service Commission of the Township of Darby sustained the removal of police officer McCartney. On appeal, the Delaware County Court of Common Pleas reversed because of irregularities in the procedure followed under The First Class Township Code,*fn1 and issued an order reinstating him, effective 31 days after the date of the order. The township

[ 42 Pa. Commw. Page 532]

    appealed the finding of procedural irregularities and officer McCartney appealed the court's refusal to reverse the Commission completely and reinstate him with back pay from the date of his removal.

The appeal was decided on the basis of the record before the Commission. After our own review of the record before the Commission, we find supportable the following findings and conclusions of the court below:

[A]ppellant police officer . . . charges a violation of Section 901 of the Police Civil Service Commission Rules for Darby Township, which section provides as follows:

'901. Procedure. Whenever any police ofcer in a township is suspended, removed or reduced in rank, the specific charges warranting each such action shall be stated in writing by the appointing authority. The charges shall be stated clearly and in sufficient detail to enable the person accused to understand the charges made against him and to answer them. As soon as practicable, the statement of charges shall be filed in duplicate with the Commission and within five calendar days of such filing the original copy of the statement of charges shall be delivered to the person accused, either by personal service or by certified or registered mail.'

A violation of The First Class Township Code is also alleged specifically to be found in 53 P.S. 55644*fn2 wherein it is provided as follows:

'A written statement of any charges made against any person so employed shall be furnished to such person within

[ 42 Pa. Commw. Page 533]

    five days after same are filed with the Commission. . . .'

A review of the record indicates that the appellant police officer was notified, in writing, of his discharge on May 13, 1976, and that on May 26, 1976, a copy of the reasons for the discharge was filed with the Civil Service Commission. Prior thereto, on May 18, 1976, appellant police officer, by his attorney, asked for specific reasons for his discharge and, not having been given those reasons, on May 25, 1976, he requested a Civil Service hearing. On May 28, 1976, a copy of the reasons for the discharge in general language was mailed to the appellant police officer and, thereafter, his attorney once again sought to have a specification of the charges. The Township failed to specify and, instead, turned over to the appellant police office [sic] what was purported to be his personnel file with the police department.*fn3

A review of the record buttresses the conclusion that it would have been impossible for the officer to offer a response to the charges stated owing to the vague and ambiguous nature of those charges since they appear to be simply a recitation of all the general categories for suspension or removal which are to be found in the Code. Although continually requested to, the Township failed to specify when the incidents occurred, who was involved or whether any disposition was made of those complaints

[ 42 Pa. Commw. Page 534]

    when they were alleged to have occurred. Moreover, the record before the Commission indicates that the Commission considered accusations and complaints which were never even brought to the officer's attention. (Emphasis added.)*fn4

The court concluded that, by not filing the charges promptly with the Commission and by not sufficiently detailing those charges when they were eventually filed, the township did not accord the officer the due process mandated by The First Class Township Code and its own rules.

On the basis of our decision in Cerceo v. Darby, 3 Pa. Commonwealth Ct. 174, 281 A.2d 251 (1971), in which we relied upon Gardner v. Repasky, 434 Pa. 126, 252 A.2d 704 (1969), we agree. Those cases, interpreting language in The Borough Code identical to that contained in The First Class Township Code, compel the conclusion that, read together, Sections 644 and 645 of The First Class Township Code,*fn5 give a dismissed police officer a right to a written statement of charges before filing an appeal with the Civil Service Commission. Such written charges must at least refer generally to the incident(s) that form the factual basis of the charge or no viable answer is possible.

Although the court here reversed the dismissal of McCartney, it did not reinstate him with back pay because it found the evidence produced against him to be very substantial. In effect, that order left McCartney with a suspension.

[ 42 Pa. Commw. Page 535]

Given the fact that defendable charges were not timely preferred, it was erroneous for the court to rely on Lower Merion Township v. Turkelson, 396 Pa. 374, 152 A.2d 724 (1959), as authority thus to exercise the discretion which it ordinarily has, under the "as the court deems proper" review standard, to modify the dismissal penalty. Turkelson assumed the regularity of the proceedings before the appeal to the Court of Common Pleas. Where, as here, the proceedings were not regular and the employee-appellant was clearly denied due process, the proper remedy is either to reverse or to remand for a hearing pursuant to proper procedures.

In support of outright reversal, the officer argues that the existence of actual bias is the distinguishing feature which requires a conclusive reversal. As examples, he cites Gardner, supra, and Cerceo, supra. We have previously considered that argument and found it unsupportable. Department of Education v. Oxford Area School District, 24 Pa. Commonwealth Ct. 421, 356 A.2d 857 (1976).

As to the propriety of a remand, directly on point is Donnon v. Downingtown Civil Service Commission, 3 Pa. Commonwealth Ct. 366, 283 A.2d 92 (1971) where Judge Crumlish pointed out the reason for the exception found in Gardner and stated the general rule:

Appellee relies on Gardner v. Repasky, supra, where the court based its refusal to remand upon 'the long delays and the looseness of the procedure.' The case before us does not indicate such a blatant disregard of the total concept of due process as was found in Gardner. We hold that this case is similar to and controlled by a myriad of cases, heretofore decided, in which improper procedural methods have dictated a contingent reversal of the agency's decision. Remand for a proper hearing regardless

[ 42 Pa. Commw. Page 536]

    of the result, insures the integrity of administrative process. Pennsylvania State Athletic Commission v. Bratton, 177 Pa. Superior Ct. 598, 112 A.2d 422 (1955); Vivio Motor Vehicle Operators License Case, 209 Pa. Superior Ct. 90, 224 A.2d 777 (1966).

3 Pa. Commonwealth Ct. at 370-71, 283 A.2d at 94. Accord: Shellem v. Springfield School District, 6 Pa. Commonwealth Ct. 515, 297 A.2d 182 (1972).

Because this case demonstrates neither egregious delays nor a lack of any effort to comply with the proper procedures, as in Gardner or as in Cerceo, where there was never even an attempt to put any of the charges in writing, we believe that the general rule of remanding, as set forth in Donnon, applies.

Order

And Now, this 9th day of May, 1979, the orders of the Court of Common Pleas of Delaware County, at No. 17108-76, dated June 7, 1977, and August 3, 1977, reinstating William A. McCartney, Jr. as a police officer in and for the Township of Darby, are reversed, and that court is hereby directed to remand the matter to the Civil Service Commission of Darby Township for hearing and disposition, only after formal, written charges are filed, in a manner not inconsistent with this opinion.

Disposition

Reversed and remanded.


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