Appeal from the Order of the Court of Common Pleas of Bucks County in case of Rowan P. Kelly, Jr. v. Warminster Township Board of Supervisors, No. 76-10978-10-6.
Ward F. Clark, with him Pratt, Clark, Gathright & Brett, for appellant.
Edward C. Connolly, with him Connolly, McAndrews, Kihm & Stevens, for appellee.
Judges Blatt, DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge Blatt.
[ 44 Pa. Commw. Page 458]
Rowan P. Kelly (petitioner) appeals from an order of the Court of Common Pleas of Bucks County which upheld his dismissal as Chief of Police by the Warminister Township Board of Supervisors.
The petitioner was hired by the Township Supervisors in December of 1974 and was granted tenure by them in December of 1975. On September 27, 1976, he was dismissed by the Supervisors for alleged acts of
[ 44 Pa. Commw. Page 459]
misconduct. He made a demand for written charges and for a hearing, and, after a series of hearing sessions resulting in approximately 750 pages of testimony, the Township Supervisors reaffirmed their earlier dismissal action.
Pursuant to the Police Tenure Act*fn1 (Act) the petitioner appealed to the court of common pleas, and the court concluded that it was within its sound discretion to determine whether or not the appeal was to be heard de novo. Based on its finding that the record below was full and complete, the court refused to take additional evidence and limited its review to a determination as to whether or not the findings of the Supervisors were suported by clear and convincing evidence. Its opinion included a thorough discussion of the issues raised by the parties and a review of the evidence supporting the findings made and then affirmed the Supervisors' action. This appeal followed.
The petitioner's central argument here is that the Police Tenure Act pursuant to which he was dismissed is unconstitutional because it provides for the commingling of the investigative, prosecutional and adjudicative functions in a single body, i.e., the Township Board of Supervisors. We have previously had several occasions to consider the extent to which the commingling of such functions is permissible. In Donnon v. Downington Civil Service Commission, 3 Pa. Commonwealth Ct. 366, 369, 283 A.2d 92, 94 (1971), we held that there is a protectional duty on the part of a municipality or agency and concluded that the proper inquiry is as follows: "Absent a showing of actual bias, did the municipality or its agency provide reasonable procedural safeguards to assure the protection of the respondent's right to a fair and unbiased adjudication?" In the instant case, Judge Mims spoke for
[ 44 Pa. Commw. Page 460]
the court below in finding that, although the "appellant contends that the charges were instituted, investigated, prosecuted and adjudicated by the Board of Supervisors [t]he evidence does not support that contention . . . [and] the Board retained independent counsel to advise it during the hearing and meticulously protected the appellant's procedural and substantive rights. There is no competent evidence that there was any bias or prejudice such as would deny the appellant a fair hearing." In Barr v. Pine Township Board of Supervisors, 20 Pa. Commonwealth Ct. 255, 341 A.2d 581 (1975) a suspended police officer challenged the constitutionality of the suspension procedures wherein the Supervisor who presided at the hearing had originally prepared (though not filed) the case for disposition. Judge Crumlish concluded for this Court that our previous decision in Rayne v. Edgewood School District, 19 Pa. Commonwealth Ct. 353, 339 A.2d 151 (1975), wherein we cited Withrow v. Larkin, 421 U.S. 35 (1975), permitted such a procedure as long as the person who filed the charges did not eventually decide the case. In the case presently before us, it is clear that the charges were made by the Township Manager who testified that he conducted the investigation on his own initiative. The court below found, and we ...