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APPEAL RICHARD M. SCHULTZ (03/19/81)

decided: March 19, 1981.

APPEAL OF RICHARD M. SCHULTZ, AN INDIVIDUAL. RICHARD M. SCHULTZ, APPELLANT


Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Appeal of Richard M. Schultz, an individual, No. SA 856-1979.

COUNSEL

Joseph M. Ludwig, for appellant.

John R. Orie, Jr., Orie & Zivic, for appellee.

Judges Wilkinson, Jr., MacPhail and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr. Judge MacPhail dissents.

Author: Williams

[ 58 Pa. Commw. Page 25]

Richard M. Schultz (appellant) appeals from an Order of the Court of Common Pleas of Allegheny County which affirmed his dismissal from the police department of Hampton Township (Township) by the mayor of the Township.

The appellant was a rookie patrolman employed by the Township. He was on duty during the early morning hours of September 6, 1978, when he received a radio report of a possible burglary. In response to this report, he proceeded to the Radio Shack store in the Hampton Plaza shopping center. Two other officers, both veterans, had also responded to the call, and were at the store when the appellant arrived.

The officers found no indication of a burglary upon their arrival; however, the door of the store was open. Instead of promptly securing the premises, these officers proceeded to remove several carloads of merchandise from the store. Conflicting evidence was presented as to the appellant's role in this crime. It remains his position that he was never a willing participant therein; but that he, being shocked and intimidated by the larcenous machinations of his seasoned brethren officers, merely feigned participation in the crime while awaiting an opportune moment to turn the others in. Although he did so two days later, he was treated no differently than his comrades. Criminal charges were brought against him, which led to his dismissal from the police force.

The disclosure of the burglary incident occasioned a public scandal. The appellant was tried and acquitted of the criminal charges in a highly publicized jury trial. Thereafter he requested and was granted a hearing on his dismissal from the police department pursuant to the Police Tenure Act*fn1 (Act). The mayor of

[ 58 Pa. Commw. Page 26]

    the Township presided over this hearing, after which the appellant's dismissal was upheld. Schultz appealed the mayor's decision to the Court of Common Pleas of Allegheny County. That court affirmed the mayor's decision without hearing additional evidence. From that Order the instant appeal followed.

The appellant asserts that his rights to due process were denied by the nature and conduct of the proceedings before the mayor. Appellant urges that collusion among the mayor, the superintendent of police, and the prosecutor resulted in an impermissible commingling of the prosecutorial and adjudicatory functions; and that the court below erred as a matter of law in failing to reverse the mayor's decision because of bias against him at his administrative hearing. We have thoroughly reviewed the lengthy record before us, and conclude that the appellant's assertions are without merit.

We first address the appellant's contention that an impermissible commingling of the prosecutorial and adjudicatory functions occurred below. It is the appellant's position that Section 4 of the Police Tenure Act*fn2 improperly authorized the mayor, as the Township's appointing authority, to take disciplinary action against a policeman and also to adjudicate the propriety of his own actions if the officer demands a hearing on the charges against him. The particular instance of impropriety alleged by the appellant concerns the mayor's role in the investigation of the matter which he ultimately adjudicated at the administrative ...


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