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JAMES M. BARNES v. COMMONWEALTH PENNSYLVANIA (11/17/82)

decided: November 17, 1982.

JAMES M. BARNES, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF JUSTICE AND THE COMMISSIONER OF STATE POLICE, RESPONDENTS



Appeal from the Order of the Commissioner of State Police in case of James M. Barnes, April 23, 1979.

COUNSEL

Michael E. Dunlavey, Orton, Joyce & Dunlavey, P.C., for petitioner.

Joseph S. Rengert, Assistant Counsel, with him Francis X. O'Brien, Jr., Chief Counsel, for respondents.

President Judge Crumlish, Jr. and Judges Blatt and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 70 Pa. Commw. Page 48]

This is the appeal*fn1 of Trooper James M. Barnes (Petitioner) from an order of the State Police Commissioner (Commissioner) suspending him for three days.

On October 4, 1978, Petitioner was attending a station dinner party for members of Troop "E" of the Pennsylvania State Police and was acting as bartender.

[ 70 Pa. Commw. Page 49]

At approximately 11:00 p.m. that evening, a physical altercation erupted between Petitioner and Sergeant Gregory N. Patterson. Both officers were off-duty and both were drinking alcoholic beverages at the party. From the testimony of other witnesses it would appear that both men were intoxicated. Sergeant Patterson hit Petitioner in the face with his fist with such force that Petitioner was knocked to the floor and rendered unconscious. For that action Sergeant Patterson was suspended for ten (10) days.

An internal investigation was conducted and subsequently Petitioner was charged with a violation of a Pennsylvania State Police Field Regulation pertaining to drinking while off duty*fn2 and was given a one day suspension. Petitioner appealed that decision to the Regional Disciplinary Board (Board) which sustained the determination of impropriety and increased the suspension to three days. Petitioner filed an exception to the Board's finding and appealed to the Commissioner. On April 23, 1979, the Commissioner issued an order affirming the decision of the Board. It is that order from which the instant appeal was taken.

The charge upon which the disciplinary action is based is that Petitioner consumed "alcoholic beverages to the extent that he became provocative and was physically assaulted by Sergeant Gregory N. Patterson" in violation of the "Use of Alcohol -- Off Duty" Field Regulations.

Petitioner first contends that there was no substantial evidence from which the ...


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