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BOROUGH JENKINTOWN v. CIVIL SERVICE COMMISSION JENKINTOWN AND OFFICER RICHARD B. LIZZIO (07/20/84)

decided: July 20, 1984.

BOROUGH OF JENKINTOWN, APPELLANT
v.
CIVIL SERVICE COMMISSION OF JENKINTOWN AND OFFICER RICHARD B. LIZZIO, APPELLEES



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Borough of Jenkintown v. Civil Service Commission of the Borough of Jenkintown and Officer Richard B. Lizzio, No. 82-15401.

COUNSEL

Frank W. Jenkins, with him, George B. Ditter, Jenkins, Tarquini & Jenkins, for appellant.

Richard W. Berlinger, for appellee, Officer Richard B. Lizzio.

Judges Rogers, Palladino and Barbieri, sitting as a panel of three. Opinion by Judge Barbieri.

Author: Barbieri

[ 84 Pa. Commw. Page 184]

The Borough of Jenkintown (Borough) appeals here from an order of the Court of Common Pleas of Montgomery County affirming an order of the Civil Service Commission of the Borough of Jenkintown (Commission) which ordered the Borough to pay ten days back pay to Richard B. Lizzio, a Borough police officer. We reverse.

The facts in this case are not in dispute. In the spring of 1981 a decal of a pig was placed on a wall in the Borough's police station with the name "Gloria" written on it, an apparent reference to the Borough Manager's secretary, Gloria Shenker, who is jewish. At some time thereafter Officer Lizzio added the word "jew" to the decal. Following an investigation into this incident, the Borough Council suspended Officer Lizzio, without pay, for a period of fifteen days pursuant to Section 1190(4) of The Borough Code (Code), Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. ยง 46190(4), since in the Borough Council's view

[ 84 Pa. Commw. Page 185]

    his conduct adding the word "jew" to the decal constituted conduct unbecoming an officer. Officer Lizzio then requested, and received, a hearing before the Commission on his suspension. After evaluating the evidence presented, the Commission determined that Officer Lizzio had in fact added the word "jew" to the decal and concluded that this conduct constituted conduct unbecoming an officer. The Commission further concluded, however, citing our decision in Borough of Bristol v. Downs, 48 Pa. Commonwealth Ct. 46, 409 A.2d 467 (1979), (1) that the Borough had "abused its discretion by imposing a penalty out of proportion to the charge proved[,]" and (2) that Officer Lizzio should only have been suspended for five days. The Commission accordingly ordered the Borough to pay Officer Lizzio ten days back pay. The common pleas court, without taking any additional evidence, subsequently affirmed this decision on appeal, and the present appeal followed.

"In a civil service proceeding where, as here, the lower court took no additional evidence, our scope of review is to determine whether or not the civil service commission abused its discretion or committed an error of law." Gregory and Foster Appeal, 30 Pa. Commonwealth Ct. 589, 591, 374 A.2d 772, 772 (1977).

We have repeatedly recognized that under the provisions of the Code, "the borough council has the primary responsibility and discretion for determining whether or not and how a police officer should be disciplined." Id. at 49, 409 A.2d at 469; Appeal of Zimmett, 28 Pa. Commonwealth Ct. 103, 367 A.2d 382 (1977). We have therefore stated that

[i]t is necessary that both court and commission give due respect and weight to the action of the duly constituted municipal body which is authorized ...


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