Appeal from the Order of the Court of Common Pleas of Allegheny County in case of John Clark v. Pittsburgh Civil Service Commission, No. SA 300 of 1981.
Evalynn B. Welling, for appellant.
D. R. Pellegrini, City Solicitor, for appellee.
President Judge Crumlish and Judges Williams, Jr. and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. Judge Williams, Jr. dissents.
[ 68 Pa. Commw. Page 274]
John Clark (Appellant) has brought this appeal from an order of the Court of Common Pleas of Allegheny County which affirmed a decision of the Pittsburgh Civil Service Commission (Commission) sustaining a fine imposed by the Fire Trial Board (Trial Board) of the City of Pittsburgh.
Appellant is employed as a fire fighter for the City of Pittsburgh. The charges arose out of an incident occurring on July 8, 1980, involving a Lieutenant Kimak and Appellant who engaged in a scuffle in the barracks room which, the city contends, was broken up by a Captain Coyne who directed both participants to leave the room. The City contends that after both men departed, Appellant approached Lieutenant Kimak from the rear and struck him one or more severe blows. Appellant contends he did not hear Captain Coyne say anything and that his striking of Lieutenant Kimak was provoked. On July 14, 1980, Appellant was found guilty of fighting and of insubordination to his commanding officer. The Trial Board imposed a fine of four days pay per seven day period of 26 pay periods.
Appellant took an appeal from that decision to the Commission which body reversed the insubordination charge for failure to properly apprise Appellant that it was Captain Coyne and not Lieutenant Kimak to whom he was allegedly insubordinate. The Commission affirmed the fighting charge and found that "the fine imposed under all circumstances was
[ 68 Pa. Commw. Page 275]
excessive." The Commission's initial order reduced the fine to one day's pay period for 26 pay periods. At the city's request the Commission suspended the initial decision to consider whether it had authority to modify the Trial Board decision. Subsequently, the Commission ruled it did not have such power whereupon it modified its initial order by remanding the matter to the Trial Board for a "clarification as to what penalty it intended to impose in each of the separate guilty findings." The Appellant appealed from that order to the court of common pleas which quashed the appeal as interlocutory. Unfortunately for the Appellant, the Trial Board declined to allocate the penalty it had previously imposed and merely affirmed the original penalty. Since there was substantial evidence to sustain the charge of fighting and it had already determined that it had no authority to modify the penalty, the Commission denied Appellant's second appeal.
An appeal to the court of common pleas followed. That court, which received no further evidence, determined that the Commission had no power to modify the penalty, that there was substantial evidence in the record to support the Commission's findings and that the penalty should be affirmed.
Stripping the legal language from the issue presented to us, we are called upon to determine whether a fireman accused and found guilty of two acts of misconduct for which a penalty is imposed, has been treated fairly under the law when one of those charges has been removed but the penalty remains the same.
The pertinent statute is the Act of June 27, 1939, P.L. 1207 (Act), as amended, 53 P.S. §§ 23491-23498. Section 6 of the Act, 53 P.S. § 23496 provides for the selection of the Trial Board members and for ...