No. 32 M.D. Appeal Docket, 1983, Appeal from the Order of the Commonwealth Court in No. 724 C.D. 1981, dated January 26, 1983,
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Zappala, J., files a dissenting opinion in which Larsen, J., joins.
This is an appeal from an order of the Commonwealth Court which reversed*fn1 an order of the Pennsylvania State Police Commissioner dismissing the appellee, Forrest M. Swaydis, from employment as a trooper. Commonwealth Court ordered that Swaydis be reinstated, and awarded back pay from the date of his suspension. The Commissioner's order of dismissal was issued after a court martial
board determined that Swaydis had engaged in improper conduct.
The sole issue on appeal concerns the manner in which the court martial proceeding was instituted, to wit whether the proceeding was void ab initio as a result of an alleged failure by the Commissioner to adequately comply with Section 205 of the Administrative Code which governs commencement of court martial proceedings. Section 205 of the Code provides:
No enlisted member of the Pennsylvania State Police shall be dismissed from service or reduced in rank except by action of a court marital board held upon the recommendation of the Commissioner of the Pennsylvania State Police and the Governor.
71 Pa.S.A. § 65(e) (1963-1982 Supp.). To secure the recommendation of the Governor that Swaydis be court martialed, as this provision requires, the Commissioner sent a memorandum to the Governor requesting that court martial proceedings be convened. The memorandum, dated November 26, 1980, stated:
Trooper Swaydis did open a checking account at the First Bank of Greater Pittston, Dupont, Pennsylvania under a fictitious name and address. He wrote checks to the Bank of Pennsylvania under the fictitious name, knowing there were insufficient funds in said account. Trooper Swaydis borrowed money from three (3) individuals and did not repay the loans; withdrew $4,300 from his savings account in the Bank of Pennsylvania, knowing there were no legitimate funds in that account; established a residence under an alias since July 12, 1980; traveled out of his patrol zone to the Bank of Pennsylvania without permission of his supervisor; and conducted personal business on several occasions while in uniform and using an official vehicle. The aforementioned constitutes violations of the Pennsylvania Crimes Code Section 4101 A-2 (Forgery) and Section 3922 A-1 (Theft by Deception). In addition to the aforementioned criminal charges, these actions constitute violations of the Pennsylvania State Police Field Regulations . . . [Unbecoming Conduct; Conformance
to Laws; Payment of Debts; Lawful Orders; Use of Vehicles].
Subsequently, on December 2, 1980, a district magistrate dismissed the criminal charges against Swaydis on grounds that the Commonwealth had failed to establish a prima facie case. On December 23, 1980, the Governor issued a recommendation that court martial proceedings against Swaydis be convened. It is undisputed that when the Governor made this recommendation he had not been notified that the criminal charges against Swaydis, which had been referred to in the memorandum, had been dismissed.
Swaydis contends that the Commissioner had a duty to notify the Governor of the dismissal of criminal charges, prior to the Governor's making a decision as to whether to recommend a court martial, and that the Commissioner's failure to have provided such notice rendered the court martial proceeding void ab initio. We disagree. It is well established that resolution of criminal charges in favor of a criminal defendant does not bar subsequent civil or administrative proceedings concerning the same underlying misconduct. V.J.R. Bar Corp. v. Commonwealth, Liquor Control Board, 480 Pa. 322, 326, 390 A.2d 163, 164-165 (1978) ...