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JOHN T. NICODEM v. COMMONWEALTH PENNSYLVANIA (01/28/82)

decided: January 28, 1982.

JOHN T. NICODEM, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA STATE POLICE, RESPONDENT



Appeal from the Order of the Pennsylvania State Police Commissioner in case of In the Matter of Trooper John T. Nicodem, Accused, Troop F, Montoursville by The Pennsylvania State Police, Commonwealth of Pennsylvania.

COUNSEL

Stephen Cohen, Cohen & Protasio, for petitioner.

Francis X. O'Brien, Jr., Assistant Attorney General, with him John L. Heaton, Assistant Attorney General, for respondent.

President Judge Crumlish and Judges Rogers and Craig, sitting as a panel of three. Opinion by Judge Craig. Judge Palladino did not participate in the decision in this case.

Author: Craig

[ 64 Pa. Commw. Page 325]

John Nicodem appeals a decision of the Pennsylvania State Police Commissioner upholding the action of a court-martial board which discharged former trooper Nicodem on the basis of five violations of Pennsylvania State Police Field Regulations.

At the inception of the proceedings, Nicodem had been directed by letter of March 15, 1979 to attend a disciplinary board hearing at 10:30 a.m. on April 2, 1979, at Montoursville, to answer charges which included alleged violations of political activity prohibitions and other infractions. The letter advised Nicodem that his rights with respect to the hearing were set forth in Field Regulation 3-3, that the date of the hearing was firm, and that a continuance would be granted "only under extraordinary circumstances;" the letter also stated that, "if a continuance is requested or you are unable or unwilling to appear as scheduled, a Limited Discretion Hearing will be conducted to determine continued duty status. . . ."

On April 2, 1979, at 9:00 a.m., Nicodem and his counsel appeared instead in federal court in Harrisburg, at a hearing on Nicodem's motion to stay the disciplinary proceedings.*fn1

Nicodem did not ask for a continuance of the disciplinary board proceeding, and did not attend it or send a representative. The board therefore held a limited discretion hearing and suspended Nicodem without pay.

Another letter directed Nicodem to attend a second disciplinary board hearing on April 16, 1979, to consider

[ 64 Pa. Commw. Page 326]

    the charges. In this hearing, Nicodem, with counsel, fully participated. Four of the five members of the second disciplinary board had also been members of the disciplinary board on April 2. After hearing the evidence, the second disciplinary board recommended that a court-martial board decide the charges.

A court-martial board was convened to hear the charges against Nicodem. Pursuant to regulations, an assistant attorney general assisted the court-martial board. Nicodem, represented by counsel, fully participated in those proceedings, also. The court-martial board found ...


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