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PATRICK E. HART v. CIVIL SERVICE COMMISSION PHILADELPHIA (03/21/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 21, 1983.

PATRICK E. HART, APPELLANT
v.
CIVIL SERVICE COMMISSION OF PHILADELPHIA, APPELLEE

Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Patrick E. Hart v. Civil Service Commission of Philadelphia, No. 3140 December Term, 1980.

COUNSEL

Stanley M. Shingles, for appellant.

Robert E. Silverman, Assistant City Solicitor, with him Judith N. Dean, Deputy City Solicitor, and Alan J. Davis, City Solicitor, for appellee.

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

Author: Macphail

[ 73 Pa. Commw. Page 27]

Patrick E. Hart (Appellant) appeals here from an order of the Court of Common Pleas of Philadelphia County affirming the decision of the Civil Service Commission of Philadelphia (Commission) which denied him disability benefits on the basis that his injury was not service-connected.

On May 2, 1977, Appellant, a Philadelphia police officer, patronized a Philadelphia tavern while off duty. Appellant became engaged in a conversation with another patron, Mr. John McGlone, while sitting at the bar. This conversation developed into an argument. McGlone then went to the rear of the bar where he began to argue with Mr. George Doman, another patron, who sided with Appellant in the argument. A scuffle erupted between McGlone and Doman. Appellant interceded and led McGlone away from Doman, and out of the bar. McGlone yelled, "I'll be back. This ain't the end of this." Shortly thereafter, McGlone returned to the bar armed with a knife and went to Doman's table. Appellant, seeing that McGlone was about to stab Doman, grabbed McGlone's arm. McGlone turned around and stabbed Appellant in the chest. He then stabbed Doman. At no time did Appellant identify himself as a police officer.

[ 73 Pa. Commw. Page 28]

Appellant has not worked as a police officer since the day before the stabbing incident. Appellant sought disability benefits, pursuant to Regulation 32*fn1 of the Philadelphia Civil Service Commission, which were denied following administrative review by the police department. The Commission in its affirmance held the issues of credibility*fn2 against Appellant finding that when they considered the testimony of the witness as a whole, "appellant crossed the line from being an observer into being a participant." The Commission further found that Appellant was not acting in his capacity as a police officer when he was injured and, therefore, was not entitled to disability benefits. The trial court affirmed the Commission's order holding that the Commission's findings were supported by substantial evidence and that there were no errors of the law nor were there any violations of Appellant's constitutional rights.

To establish eligibility for benefits under Regulation 32, the burden is upon the Claimant, Appellant here, to prove that he has suffered a service-connected accident which caused the alleged disability. City of Philadelphia v. Hays, 13 Pa. Commonwealth Ct. 621,

[ 73 Pa. Commw. Page 29320]

A.2d 406 (1974). Since Appellant failed to meet his burden of proof below, we are mindful that our review is limited to a determination of whether the Commission's findings are consistent with each other and with the conclusions of law, and whether they may be sustained without capricious disregard of the evidence. Santini v. Civil Service Commission, 60 Pa. Commonwealth Ct. 612, 432 A.2d 301 (1981).

The record establishes that the Commission did not capriciously disregard*fn3 competent evidence in finding that Appellant failed to prove his injuries were service-connected.*fn4 The evidence shows that at the time Appellant was stabbed by McGlone he was acting in his own behalf for personal reasons. It was his personal involvement with McGlone and Doman that caused Appellant to participate in the situation. Under such circumstances, Appellant cannot successfully contend that he was an observing police officer, who answered the call of duty.*fn5 Appellant's injuries, therefore, are not service-connected.

[ 73 Pa. Commw. Page 30]

Order affirmed.

Order

It is ordered that the order of the Court of Common Pleas of Philadelphia County, dated August 15, 1980 and numbered 3140, is hereby affirmed.

Disposition

Affirmed.


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