Appeal from the Order of the Commissioner of the Pennsylvania State Police in the case of Court-Martial, Trooper Forrest M. Swaydis, dated March 4, 1981.
Applicant for reargument filed and denied.
Harris T. Bock, with him, Kathleen A. Fiftal, Bock and Finkelman, for petitioner.
Gregory R. Neuhauser, Deputy Attorney General, with him, Francis R. Filipi and Sally A. Lied, Deputy Attorneys General, and LeRoy S. Zimmerman, attorney General, for respondent.
President Judge Crumlish, Jr. and Judges Rogers and MacPhail, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.
[ 71 Pa. Commw. Page 383]
State Police Trooper Forrest M. Swaydis was dismissed by the Pennsylvania State Police Commissioner's order. We reverse.
Swaydis was charged with violations of both the Pennsylvania State Police Field Regulations and the Pennsylvania Crimes Code.*fn1 The Court Martial Board found him guilty of all but two charges and recommended dismissal, suspension without pay or a written reprimand. The Commissioner adopted the recommendation of dismissal. Swaydis appeals.
Four days of testimony were taken before the Court Martial Board and Swaydis now alleges several errors: 1) that there was an improper commingling of prosecutorial and adjudicatory functions; 2) that the Court Martial Board was without the power to render an adjudication on the criminal charges and 3) that the initial convening of the Court Martial Board was void ab initio.
We need not address the first two issues because we agree with Swaydis' third contention. Section 205 of the Administrative Code provides:*fn2
(e) No enlisted member of the Pennsylvania State Police shall be dismissed from service or reduced in rank except by action of a court martial board held upon the recommendation of the Commissioner of the Pennsylvania State Police and the Governor.
[ 71 Pa. Commw. Page 384]
Complying with this statutory mandate, the Commissioner sent a memorandum to the Governor requesting that court martial proceedings be convened. ...