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FREDERICK J. MCALLISTER v. CIVIL SERVICE COMMISSION CITY PHILADELPHIA (01/07/82)

decided: January 7, 1982.

FREDERICK J. MCALLISTER, APPELLANT
v.
CIVIL SERVICE COMMISSION OF THE CITY OF PHILADELPHIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Frederick J. McAllister v. Civil Service Commission of the City of Philadelphia, No. 6114 June Term, 1975.

COUNSEL

Bruce K. Cohen, Meredith & Cohen, P.C., for appellant.

Jill A. Douthitt, with her Alan J. Davis, City Solicitor, and Judith N. Dean, Deputy City Solicitor, for appellee.

Judges Williams, Jr., MacPhail and Palladino, sitting as a panel of three. Opinion by Judge MacPhail. Judge Palladino dissents. This decision was reached prior to the expiration of the term of office of Judge Palladino.

Author: Macphail

[ 64 Pa. Commw. Page 49]

Frederick J. McAllister appeals a Philadelphia County Common Pleas Court order affirming his dismissal by the Civil Service Commission (Commission)

[ 64 Pa. Commw. Page 50]

    from the Philadelphia Police Department (Department). We reverse and remand.

McAllister was dismissed by the Department on May 28, 1967, for accepting money to investigate a complaint and to issue arrest warrants.*fn1 On appeal, the Commission ordered McAllister's reinstatement because of insufficient evidence and, subsequently, the Department petitioned for rehearing. Additional testimony was presented on August 13, 20 and October 6, 1970.*fn2 On January 8, 1971, the Commission, reversing its earlier decision, sustained the dismissal. On appeal, Common Pleas Court Judge Ned Hirsh remanded, without instruction, for further hearings.*fn3

Prior to these rehearings, the physical evidence and testimony transcripts were lost. Although full transcripts were reconstructed, the handwriting specimens were never recovered. At the Commission rehearings, over McAllister's objection, the complaining witness' testimony from the previous hearing was admitted into evidence when she could not be located to testify. Also, the graphologist's prior testimony was admitted over counsel's objection that the Commissioners could not examine the actual writing specimens.*fn4 The Commission, on June 27, 1975, reinstituted

[ 64 Pa. Commw. Page 51]

    dismissal. The Common Pleas Court, per Judge Gelfand, affirmed.*fn5

In reviewing a Civil Service Commission decision, we must affirm unless we find that the adjudication is violative of constitutional rights, is not in accordance with the law or with the provisions of Local Agency Law, or that any necessary factual finding is not supported by substantial evidence. Fabio v. Civil ...


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