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NICHOLAS FABIO v. CIVIL SERVICE COMMISSION CITY PHILADELPHIA (04/30/80)

decided: April 30, 1980.

NICHOLAS FABIO, APPELLANT,
v.
CIVIL SERVICE COMMISSION OF THE CITY OF PHILADELPHIA



No. 715 January Term, 1977, Appeal from Order of the Commonwealth Court of Pennsylvania dated May 16, 1977, No. 1775 C.D. 1975, affirming the Order of the Philadelphia Court of Common Pleas, No. 2864, June Term, 1974, which affirmed the Order of the Civil Service Commission.

COUNSEL

Stanley Bashman, Philadelphia, for appellant.

James M. Penny, Jr., Asst. City Sol., Ralph J. Teti, Senior Trial Asst., Philadelphia, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix,*fn* Manderino, Larsen and Flaherty, JJ. Manderino, J., did not participate in the decision of this case. Roberts, J., filed a concurring opinion. Larsen, J., concurred in the result.

Author: Nix

[ 489 Pa. Page 313]

OPINION

The Philadelphia Civil Service Commission held that appellant, Nicholas Fabio, was guilty of "conduct unbecoming an officer,"*fn1 and ordered his dismissal from the Philadelphia Police Department. The Common Pleas Court of Philadelphia and the Commonwealth Court affirmed appellant's dismissal. 30 Pa. Commw. 203, 373 A.2d 751 (1977). We granted review*fn2 in order to determine the constitutionality of Article I, section 1.75 of the Philadelphia Police Duty Manual.

Appellant joined the Philadelphia Police Department in November 1969. He was rated "overall superior" in his last performance report. On October 1, 1973, appellant's commanding officer received a telephone call from John Gleason, appellant's father-in-law. Mr. Gleason stated that he wished to register a complaint against Police Officer Steven Richman for "stealing" his daughter away from the appellant. Mr. Gleason also asserted that Officer Richman was responsible for arranging his younger daughter, Helen, to have sexual relations with other police officers.

As a result of this telephone conversation, appellant's commanding officer commenced an investigation. The investigation disclosed that appellant and his wife were having marital problems and that appellant was convinced that an extra-marital sexual experience would improve their marriage. Interviews with appellant's wife revealed that appellant had been continuously urging her to have a sexual affair with another man and that she finally consented.

[ 489 Pa. Page 314]

Appellant procured Officer Richman as a partner for his wife and Officer Richman's girlfriend for himself. In July 1973, the couples met in Richman's apartment and appellant's wife had sexual relations with Richman. Subsequently, the appellant instigated an affair with his wife's eighteen year old sister, Helen Gleason. On September 2, 1973, the appellant and his wife separated.

Based upon the above activities, the appellant was charged with violating Article I, Section 1.75 of the Philadelphia Police Duty Manual. The Police Board of Inquiry found appellant guilty and recommended dismissal. The Philadelphia Civil Service Commission, Court of Common Pleas of Philadelphia and the Commonwealth Court of Pennsylvania affirmed appellant's dismissal.

On appeal appellant first contends that on its face, Article I, Section 1.75 of the Philadelphia Police Duty Manual is unconstitutionally void for vagueness. A law is void on its face if it is so vague that persons "of common intelligence must necessarily guess at its meaning and differ as to its application." Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). See also, Note, "The void for vagueness doctrine in the Supreme Court," 109 U.Pa.L.Rev. 67 (1960). The void for vagueness doctrine incorporates the due process notions of fair notice or warning. Grayned v. Rockford, 408 U.S. 104, 108-109 n. 4, 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222 (1972); Papachristou v. Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1971); Commonwealth v. Skufca, 457 Pa. 124, 131, 321 A.2d 889 (1974). Also the doctrine mandates that lawmakers set reasonably clear guidelines for law enforcement officers and triers of fact in order to prevent "arbitrary and discriminating enforcement." Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1973); see also Commonwealth v. Skufca, 457 Pa. at 131, 321 A.2d at 893. Therefore, in reviewing a void for vagueness challenge,

[ 489 Pa. Page 315]

    we must consider both the essential fairness of the law*fn3 and the impracticability of drafting the legislation with greater specificity. Arnett v. Kennedy, 416 U.S. 134, 161, 94 S.Ct. 1633, 1647, 40 L.Ed.2d 15 (1973); Meehan v. Macy, 392 F.2d 822, ...


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