No. 72 W.D. Appeal Dkt. 1983, Appeal from the Order of Commonwealth Court Dated June 22, 1983 at No. 1200 C.D. 1982, Vacating and Remanding the Order of Court of Common Pleas, Civil Division, Allegheny County at No. SA 211 of 1982, Pa. Commonwealth Ct. ,
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Nix, C.j., files a concurring opinion. Zappala, J., files a dissenting opinion. Papadakos, J., did not participate in the consideration or decision of this case.
The Department of Fire of the City of Pittsburgh appeals by allowance a Commonwealth Court order, 75 Pa. Commw. 166, 461 A.2d 897, which vacated an order of the Court of Common Pleas of Allegheny County and ordered this case remanded to the Civil Service Commission of the City of Pittsburgh. Common Pleas held that appellee, a member of the Pittsburgh Fire Department had, as a matter of law, engaged in conduct unbecoming an officer. In so holding, Common Pleas reversed the Civil Service Commission and reinstated the decision of the Fire Trial Board.
Resolution of this case requires us to determine but one issue: did Common Pleas properly determine that appellee had engaged in conduct unbecoming an officer? We hold that it did. We thus reverse the order of Commonwealth Court and reinstate the order of Allegheny County Common Pleas.
The facts, as found by the Civil Service Commission, are straight-forward and not in dispute. On June 16, 1981, appellee Jones, a member of the Pittsburgh Fire Department, returned home from his shift at 7:30 A.M. to find his home burglarized and his stereo system stolen. Jones spoke with several neighbors and learned that the stereo was probably being hidden in an abandoned building behind
Jones's house. Jones reported the theft to the police, and requested their help in retrieving his property. The police told Jones that because of lack of manpower, they could not stake out the building or accompany him to get his property. They told him to retrieve it himself.
Jones armed himself with a .22 caliber pistol and began searching the building. During the search, he was surprised by two boys*fn1 who had returned. A scuffle ensued, with one of the youths coming after Jones, the other running away from Jones. Jones opened fire, wounding both youths. The fleeing juvenile died from a shot in the back of the head.*fn2
Jones himself admitted that the other wounded boy called him by name and asked for help. He responded by demanding to know where his stereo was. The wounded boy indicated it was in a green van parked outside the building. Jones stepped over him, went to the van and retrieved the stereo. Jones did not call for aid, and fled as police and paramedics, called by neighbors who saw the wounded boy, were arriving. Shortly thereafter, Jones turned himself in to the police and voluntarily gave a statement relating the incident.
On that record the Civil Service Commission concluded that Jones acted in self-defense and not in an unbecoming manner. We believe Jones's prior conduct in arming himself before seeking self-help to right a personal wrong established his willingness to act violently and use deadly force in circumstances the law does not permit. Such conduct is conduct unbecoming an officer in the uniformed fire service as a matter of law.
The case received widespread publicity in the Pittsburgh area, focusing attention on Jones's ...