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JOHN F. FOX v. CIVIL SERVICE COMMISSION CITY PHILADELPHIA (07/02/84)

decided: July 2, 1984.

JOHN F. FOX, JR., APPELLANT
v.
CIVIL SERVICE COMMISSION OF THE CITY OF PHILADELPHIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of John F. Fox, Jr. v. Civil Service Commission, No. 2385 December Term, 1980.

COUNSEL

Michael A. Tier, with him, F. Emmett Fitzpatrick, F. Emmett Fitzpatrick, P.C., for appellant.

Jesse Milan, Jr., with him, Kenneth L. Fox, Assistant City Solicitor, Barbara Axelrod, Deputy City Solicitor and Mark A. Aronchick, City Solicitor, for appellee.

Judges Rogers, Craig and Barry, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 83 Pa. Commw. Page 432]

This appeal results from an order of the Court of Common Pleas of Philadelphia, affirming a decision of the appellee, the Civil Service Commission of the City of Philadelphia (Commission), which sustained the dismissal of appellant, John F. Fox, from the Philadelphia Police Department.

On May 29, 1980, appellant, then an officer of the Philadelphia Police Department, responded to a police radio call concerning a problem at 627 South 19th Street in Philadelphia. Upon arriving at the scene, appellant was told by a Philadelphia Gas Works employee that a fellow officer was inside the building and that someone in the building had a gun. Appellant drew his gun and ran into the vestibule where he found Officer George Lopit, who told appellant

[ 83 Pa. Commw. Page 433]

    that a resident in a certain apartment had pointed a gun at him.

A strong gas smell permeated the vestibule of the building. One door leading to an apartment was open approximately six inches. Without asking Lopit for an evaluation of the situation and without identifying himself as an officer and asking the resident to open the door, appellant kicked in the door, breaking a chain lock which had been secured. At no time before kicking in the door was any weapon pointed at appellant. Once the door was opened, appellant was confronted by a ninety four year old male, Joseph Jackson, who was brandishing what appeared to be a revolver; appellant fell to the floor and after hearing a click which sounded like a pulled trigger, appellant fired two shots, killing Jackson. As it turned out, Jackson had only a starter's pistol.

Appellant was discharged following an internal investigation by the police department. Appellant then appealed the dismissal to the Commission which, after hearing testimony, sustained the dismissal, finding that appellant had violated a departmental directive pertaining to barricaded persons. The Court of Common Pleas of Philadelphia affirmed the Commission's order and this appeal followed.

Appellant argues the court erred in finding he had violated Police Directive No. 111, thereby allowing his dismissal from the police force. The court, however exercised appellate-type review as it took no additional evidence; the court, therefore, held the Commission's adjudication and factual findings in support thereof were supported by substantial evidence. The Local Agency Law, 2 Pa. C.S. ยง 754(b) (Supp. 1964-82) provides:

In the event a full and complete record of the proceedings before the local agency was

[ 83 Pa. Commw. Page 434]

    made, the court shall hear the appeal without a jury on the record certified by the agency. After hearing the court shall affirm the adjudication unless it shall find that the adjudication is in violation of the constitutional rights of the appellant, or is not in accordance with law, or that the provisions of Subchapter B of Chapter 5 (relating to practice and procedure of local agencies) have been violated in the proceedings before the agency, or that any finding of fact made by the agency and necessary to support its adjudication is not supported by substantial evidence.

As appellant makes no argument concerning any error of law, we will treat his brief as a challenge to the sufficiency of the evidence.

In Republic Steel Corp. v. Workmen's Compensation Appeal Board, 492 Pa. 1, 5, 421 A.2d 1060, 1062-63 (1980), the court stated:

Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. . . . Hence, appellate review must focus on whether there is rational support in the record, when reviewed as a whole, for the agency action. These principles have repeatedly been stated in another fashion: Review of the findings of fact is limited to the question of whether the lower court's findings are adequately supported by the evidence as a whole; credibility is solely an issue for the finder of fact; and findings of fact will be overturned only if they are arbitrary and capricious. . ...


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