Appeal from the Order of the Commissioner of the Pennsylvania State Police in the case of Court-Martial, Lieutenant Herbert L. Stouffer, dated August 27, 1981.
James Victor Voss, with him James R. Mall, Meyer, Unkovic & Scott, for petitioner.
John L. Heaton, Chief Counsel, for respondent.
President Judge Crumlish, Jr. and Judges Craig and Doyle, sitting as a panel of three. Opinion by Judge Doyle.
[ 76 Pa. Commw. Page 398]
Herbert L. Stouffer (Petitioner) appeals here from an order of the Commissioner of the Pennsylvania State Police (Commissioner) which dismissed Petitioner from his position as a State Police lieutenant pursuant to the recommendation of two members of a three member Court-Martial Board. We affirm.
On May 11, 1981, Petitioner was observed leaving a Jamesway store in Meadville, Pennsylvania with several packs of fishing lures he had not paid for. A store security guard subsequently detained him, and after being led to the store's security office, Petitioner signed a card in which he conceded that he had "shoplifted" the merchandise. Petitioner was suspended from his job, without pay, as a result of this incident, and on the date of his suspension a citation was issued charging him with the summary offense of retail theft. Following the issuance of a Disciplinary Action Report on May 22, 1981,*fn1 and Petitioner's
[ 76 Pa. Commw. Page 399]
conviction before a district magistrate on the charge of retail theft, on June 16, 1981, Petitioner was informed by a letter from the State Police dated June 26, 1981, that he would be court-martialed for an alleged violation of Field Regulation 1-1, Section 1.01,*fn2 which prohibits members of the State Police from conducting themselves in a manner unbecoming a police officer and Field Regulation 1-1, Section 1.02,*fn3 which states in part that members of the State Police must abide by the laws of the Commonwealth of Pennsylvania. Two days of hearings on these charges were subsequently conducted before the Court-Martial Board on July 28 and 29, 1981. At these hearings, Petitioner testified (1) that he had taken certain prescription drugs on the morning of May 11, 1981, and again after he had come home from work on that date, (2) that he had been drinking alcohol prior to his May 11, 1981, trip to Jamesway, and (3) that he had no recollection of taking the lures. Petitioner then called a Dr. James Henry Buckholder as a witness who testified that in his professional opinion Petitioner's "irrational behavior" was caused by an adverse reaction between the prescription drugs he had been taking and the alcohol he had consumed. Petitioner also called a Dr. John Edward Blake, a psychiatrist, and Robert E. Devine, a clinical psychologist,
[ 76 Pa. Commw. Page 400]
as witnesses. Both of these witnesses testified that they believed Petitioner's actions on May 11, 1981, were induced by a psychological condition they referred to as a "fugue" which they attributed to stress Petitioner was suffering from as a result of his heart condition.
Shortly after the conclusion of the July 29, 1981, hearing the Court-Martial Board issued an oral recommendation, which was transcribed into record, in which they made certain findings of fact and conclusions of law. In this recommendation to the Commissioner, the Court-Martial Board stated that the majority of the Board found as facts (1) that Petitioner had intentionally taken the lures, and (2) that the "evidence did not support the theory of nonculpability offered by experts for the defense." The majority of the Board then concluded (1) that Petitioner had committed the act of retail theft, and hence had violated Field Regulation 1-1, Section 1.02, and (2) that Petitioner's conduct in committing retail theft was conduct unbecoming a police officer, and hence, was in violation of Field Regulation 1-1, Section 1.01. The majority of the Board then recommended that Petitioner be dismissed for each of these violations. Subsequent to the issuance of this recommendation, the Court of Common Pleas of Crawford County reversed Petitioner's conviction on the charge of retail theft. Following this reversal, however, the Commissioner adopted the recommendations of the Court-Martial Board, and dismissed Petitioner from his position. The present appeal followed.*fn4
[ 76 Pa. Commw. Page 401]
Before this Court, Petitioner advances numerous allegations of error which we shall address seriatim. We note first, however, that our Supreme Court has recently questioned the procedures employed in the decision-making process involved here. Soja v. Pennsylvania State Police, 500 Pa. 188, 455 A.2d 613 (1982). Specifically, the Court, in a plurality opinion,*fn5 found the internal procedural requirement that all preliminary investigations, reports and recommendations be forwarded to the Commission, to conflict with the Commissioner's adjudicatory role of accepting or rejecting the Court-Martial Board's recommendation. As the proceedings in the instant case predate the Supreme Court's opinion in Soja, the procedure found to be ...