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BOROUGH DARBY ET AL. v. PAUL J. COLEMAN (10/26/79)

decided: October 26, 1979.

THE BOROUGH OF DARBY ET AL., APPELLANTS
v.
PAUL J. COLEMAN, APPELLEE



Appeal from the Order of the Court of Common Pleas of Delaware County in case of Paul J. Coleman v. Borough of Darby et al., No. 77-9838.

COUNSEL

Peter J. Nolan, for appellants.

Thomas L. Kelly, with him Eckell, Sparks, Vadino, Auerbach and Monte, for appellee.

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

Author: Rogers

[ 47 Pa. Commw. Page 10]

The Borough of Darby (Borough) has appealed from an order of the Court of Common Pleas of Delaware County ordering reinstatement with back pay of Paul J. Coleman as Chief of Police of the Borough. The order of the court below reversed the decision of the Borough Council discharging Coleman which had been upheld, after hearing, by the Darby Borough Police Civil Service Commission.

Coleman was dismissed pursuant to Section 1190 of The Borough Code, Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. ยง 46190, which provides in part that a police officer may be removed for "(2) [n]eglect . . . of any official duty" and "(4) [i]nefficiency, neglect, intemperance, immorality . . . or conduct unbecoming an officer." Specifically, Coleman was charged with (1) directing profane and insulting language toward a subordinate, after indulging in strong drink; (2) failing to initiate a criminal complaint when circumstances called for such action; (3) failing to assist a fellow officer after informing that officer that he would assist; and (4) engaging in a relationship with a woman other than his wife. The

[ 47 Pa. Commw. Page 11]

Commission found that Coleman was guilty of all charges, that he had violated the Act of February 1, 1966, and that he had in addition violated certain provisions of a Borough ordinance also regulating police conduct. The Civil Service Commission also found, sua sponte, that Coleman had violated provisions of the same Borough ordinance not described in the charges upon which the action was originally based. Upon appeal, the Court of Common Pleas of Delaware County, without taking any additional evidence, reversed the Commission and ordered Coleman reinstated with full back pay.

The Borough contends on this appeal that the court below exceeded its scope of review of the Commission's decision by making an independent examination of the record and making findings of fact which, in effect, substituted its judgment for that of the Commission. The Commission claims that there is substantial evidence in the record to support its findings. Coleman, on the other hand asserts that the evidence of record does not support the Commission's findings and further argues that any reliance by the Commission upon the Borough's ordinance regulating police conduct is unconstitutional as an ex post facto application of law, since the ordinance in question was not enacted until a date after his allegedly improper conduct had occurred.

Our scope of review, where the court below did not receive any additional evidence or testimony, is limited to a determination of whether the Civil Service Commission abused its discretion or committed an error of law. Gabauer v. Civil Service Commission, 6 Pa. Commonwealth Ct. 646, 648, 297 A.2d 507, 508 (1972). We must affirm the Civil Service Commission's decision if there is substantial evidence to support it.

With respect to the charge that Coleman engaged in immoral conduct with a woman ...


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