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HAROLD GORDON v. CIVIL SERVICE COMMISSION (07/16/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: July 16, 1982.

HAROLD GORDON, APPELLANT
v.
CIVIL SERVICE COMMISSION, APPELLEE

Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Harold Gordon v. Philadelphia Civil Service Commission, No. 2707 November Term, 1980.

COUNSEL

Alfonso Tumini, for appellant.

Jill A. Douthett, Deputy City Solicitor, with her Alan J. Davis, City Solicitor, and Linda S. Sonnenberg, Assistant City Solicitor, for appellee.

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

Author: Craig

[ 67 Pa. Commw. Page 467]

Harold Gordon appeals from an order of the Court of Common Pleas of Philadelphia, affirming the Philadelphia Civil Service Commission's determination that his conduct on October 14, 1979 constituted just cause for dismissal from the Philadelphia police force.

[ 67 Pa. Commw. Page 468]

In the notice of intention to dismiss, the police commissioner charged the following:

CONDUCT UNBECOMING AN OFFICER: On Sunday, 10-14-79 between 6:00 p.m. and 6:30 p.m., you went to 5729 Beechwood Street, the residence of your former wife (divorce final September, 1979) Adele Gordon, without notice and then fought with her and hit her in the face knocking her down, while brandishing your service revolver.

During the same altercation described in the above, you struggled with Mr. George Isaac, and shot at him in an apparent attempt to kill him.

INTOXICATION: . . . your actions at 6:30 p.m., combined with the .06% score at 11:53 p.m. indicates you were intoxicated at 6:30 p.m.

DISOBEDIENCE OF ORDERS: During an altercation on 10-14-79 with Mr. George Isaac, you shot at him in an apparent attempt to kill him.

The appellant contends that the commission's adjudication was based solely on hearsay evidence, and was therefore not supported by substantial, competent evidence.

The commission, summarizing the evidence, concluded:

In our judgment the testimony of the police officers who came to the scene as a result of a police radio call*fn1 establish that an incident had just occurred between appellant, his ex-wife and

[ 67 Pa. Commw. Page 469]

Mr. Isaac. Moreover, it was determined appellant had fired his .38 caliber pistol in the back bedroom of the house. The uncontroverted physical evidence, namely, the spent blank shell casings, the photographs taken at the scene immediately after the arrival by the police and the testimony of the firearms expert linking the shells to appellant's gun, demonstrate appellant's conduct.

In our judgment, this testimony, plus the physical evidence, constitutes just cause for dismissal.

Neither Harold Gordon, his ex-wife, nor Mr. Isaac testified before the commission. The city did submit,

[ 67 Pa. Commw. Page 470]

    as an exhibit, a statement by Mr. Isaac taken by an investigating officer, in which Mr. Isaac claimed that the gun discharged while he and the appellant were struggling in the stairway, although the gun was in the appellant's right hand.*fn2

The trial court concluded that the hearsay statements made by the witnesses at the hearing, along with the physical evidence admitted as exhibits, possessed "indicia of reliability sufficient to provide them prima facie circumstantial guarantees of trustworthiness."

Consistent with Walker v. Unemployment Compensation Board of Review, 27 Pa. Commonwealth Ct. 522, 367 A.2d 366 (1976),*fn3 the rule continues to be that findings of fact based solely on uncorroborated hearsay cannot stand. LeGare v. Unemployment Compensation Board of Review, Pa. , A.2d (410 January Term, 1979, filed May 3, 1982).

Our review of the record indicates that, in making its findings as to what had occurred, the commission

[ 67 Pa. Commw. Page 471]

    relied on hearsay testimony, together with the physical evidence involving bullets and shells, which has probative value so questionable -- particularly as to time element -- that we cannot regard it as corroborative.*fn4 Although we cannot interfere with the factfinder's function as arbiter of credibility, In re Appeal of Corropolese, 55 Pa. Commonwealth Ct. 55, 423 A.2d 28 (1980), we cannot hold as a matter of law that the hearsay, even linked with the firearms evidence, was "such relevant evidence as a reasonable mind might accept as adequate to support [the] conclusion reached." Bureau of Employment Security v. Schreider, 24 Pa. Commonwealth Ct. 297, 298-99, 355 A.2d 838, 840 (1976).

Therefore, we must reverse as to the unbecoming conduct and disobedience charges and remand to the commission solely to consider whether substantial evidence exists, independently of the hearsay evidence previously considered, to support the remaining charge of intoxication.

[ 67 Pa. Commw. Page 472]

Order

Now, July 16, 1982, the order of the Court of Common Pleas of Philadelphia, dated July 22, 1981, No. 2707 November Term, 1980, is reversed as to the unbecoming conduct and disobedience charges, and the case is remanded to the Philadelphia Civil Service Commission in accordance with this opinion.

Disposition

Reversed and Remanded.


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