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LOWER PROVIDENCE TOWNSHIP AND LOWER PROVIDENCE TOWNSHIP BOARD SUPERVISORS v. JOSEPH NAGLE (01/03/84)

decided: January 3, 1984.

LOWER PROVIDENCE TOWNSHIP AND LOWER PROVIDENCE TOWNSHIP BOARD OF SUPERVISORS, APPELLANTS
v.
JOSEPH NAGLE



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Joseph Nagle v. Lower Providence Township and Lower Providence Township Board of Supervisors, No. 81-09474.

COUNSEL

Richard C. Sheehan, for appellants.

Wallace A. Murray, Jr., Wisler, Pearlstine, Talone, Craig and Garrity, for appellee.

Judges Rogers, Williams, Jr. and Barbieri, sitting as a panel of three. Opinion by Judge Barbieri. Judge Robert W. Williams, Jr. concurs in the result only.

Author: Barbieri

[ 79 Pa. Commw. Page 324]

Lower Providence Township (Township) and the Lower Providence Township Board of Supervisors (Board) appeal here from an order of the Court of Common Pleas of Montgomery County directing the Township to reinstate Joseph Nagle to his former position as a sergeant on the Township's police force. We affirm.

On October 9, 1980, the Board informed Sergeant Nagle, a fifteen year veteran on the Township's police force, by letter, that he was being indefinitely suspended from his job. This letter, although not made a part of the record certified to this Court, was quoted in its entirety by the Court below, and reads in pertinent part as follows:

Please be advised that the Board of Supervisors has met in an emergency personnel session on Thursday, October 9, 1980, at 3:30 P.M. At this time, in the presence of all Board members, medical reports from Jonathan H. Claney, M.D. and Ron Fischman, Ed.D. were opened and read. Copies of these reports are enclosed herein and for purposes of the Police Tenure Act, they shall serve as the written statement of charges filed against you. . . .

As a result of reading the medical reports, the Board voted to suspend you as an active Police Officer immediately and indefinitely. . . .

At the time Sergeant Nagle received this notice, he was on an authorized leave of absence, and had agreed, at the request of the Township's Police Chief, to be examined by Dr. Claney and Mr. Fischman, because he desired psychological counseling. He was not aware, however, that these examinations were being conducted for investigative purposes, and had not authorized the release of any information to the Township.

[ 79 Pa. Commw. Page 325]

Reacting to the Board's suspension letter, Sergeant Nagle submitted to psychological examinations by William J. Kelly, Ph.D., a psychologist, Dr. Harold Byron, a psychiatrist, and Dr. Robert Benjamin, a psychiatrist, each of whom found him to be psychologically healthy, and forwarded reports from each examiner to the Board. Sergeant Nagle also consented to a reexamination by Dr. Claney, who submitted a new report to the Board on January 19, 1981. After reviewing this evidence, the Board voted on January 27, 1981, without conducting a hearing on the matter, to dismiss Sergeant Nagle on the grounds of mental incompetence. After having so voted, however, the Board decided, apparently at the request of Sergeant Nagle, to conduct hearings on his dismissal. Three days of hearing were subsequently conducted before the Board, at which both parties presented evidence pertaining to Sergeant Nagle's mental condition. After reviewing this evidence, the Board, by a vote of three to two, reaffirmed its initial decision to dismiss, and an appeal was taken to the court of common pleas. In his appeal notice, Sergeant Nagle raised for the first time the issue of bias, alleging that two of the Board's supervisors had been biased against him, and further alleged that the Board's decision was not based "upon the preponderance of the evidence." At an initial hearing on this appeal, the parties agreed to have the "preponderance of evidence" issue decided on the record made before the Board, but to have evidentiary hearings on the issue of bias, and the court, ...


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