Appeals 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 John J. Herrmann, No. 82-14220, and in case John J. Herrmann v. Civil Service Commission of the Borough of Jenkintown and Borough Council of the Borough of Jenkintown, No. 82-14886.
J. Peirce Anderson, with him, Susan Peikes Gantman, for appellant.
Frank W. Jenkins, with him, George B. Ditter, Jenkins, Tarquini & Jenkins, for appellee.
Judges Williams, Jr., MacPhail and Doyle, sitting as a panel of three. Opinion by Judge Doyle.
[ 84 Pa. Commw. Page 213]
Before us are cross appeals from an order of the Court of Common Pleas of Montgomery County which modified a decision of the Civil Service Commission of the Borough of Jenkintown (Commission).
Appellant, John J. Herrmann, a police officer for the Borough of Jenkintown, was suspended indefinitely by the Borough Council following its determination that he had engaged in misconduct which included: (1) defacement of borough property; (2) socializing and consuming alcohol with a female employee while on duty; (3) drinking on duty; (4) striking a female employee while on duty; and (5) presence on duty with a strong odor of alcohol on his breath. Herrmann appealed to the Commission which, following a hearing, found that only the last charge was proven by substantial evidence. The Commission modified the penalty of indefinite suspension to suspension without pay for the period from the original suspension to the date of the Commission's order, a period of some four and a half months.*fn1 From this decision both parties took appeals to the court of common pleas, which took no additional testimony. The court of common pleas purported to reinstate the Council's indefinite suspension but limited its duration to one year.
In a civil service appeal, when the court of common pleas takes no additional evidence, our scope of review is limited to determining whether the civil service commission abused its discretion or committed error of law. Borough of Darby v. Coleman, 47 Pa. Commonwealth Ct. 9,
[ 84 Pa. Commw. Page 214407]
A.2d 468 (1979). At issue is the Commission's authority to modify the penalty imposed by Borough Council when the Commission determines that some, but not all, of the charges against the disciplined employee are proven by substantial evidence. Two of our previous cases are directly on point. Borough of Bristol v. Downs, 48 Pa. Commonwealth Ct. 46, 409 A.2d 467 (1979) and Appeal of Zimmett, 28 Pa. Commonwealth Ct. 103, 367 A.2d 382 (1977). But while not irreconcilable, these two previous cases reached opposite results.
In Zimmett, the Council of the Borough of St. Mary's dismissed a police officer for intoxication while on duty and for numerous charges and violations of police policy related to the intoxication incident. The borough civil service commission determined that only the intoxication charge was substantiated by the evidence and reduced the penalty imposed to suspension for 120 days. The commission speculated that had the council considered only the substantiated charge, it would not have imposed a dismissal, and concluded that its penalty was more reasonable. On appeal to this Court, we overturned the commission's modification, holding that the commission's speculation as to what council would or would not have done demonstrated "complete lack of deference to the discretion of those primarily charged with maintaining an efficient and effective police force." Id. at 108, 367 A.2d at 384.
In Borough of Bristol, a police officer was suspended for three days and demoted from sergeant to patrolman on numerous charges of neglect and violation of duty stemming from his driving two boys home in his patrol car during a severe snowstorm. The borough civil service commission determined that while the officer had ...