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THEODORE E. CLITES v. TOWNSHIP UPPER YODER (12/18/84)

decided: December 18, 1984.

THEODORE E. CLITES, APPELLANT,
v.
TOWNSHIP OF UPPER YODER, AND ROBERT W. HUNT, SUPERVISOR, EUGENE T. GLOVA, SUPERVISOR, AND C.T. MADIGAN, SUPERVISOR, APPELLEES



No. 35 W.D. Appeal Docket 1984, Appeal from the Order entered December 8, 1983, of the Commonwealth Court of Pennsylvania at No. 2140 C.D. 1982, affirming the Order of the Court of Common Pleas of Cambria County, Civil Division, entered August 2, 1982 at NO. 1981 - 4909, Nix, C.j., and Larsen,*fn* Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Hutchinson, J., filed a concurring opinion. Flaherty, J., filed a dissenting opinion in which Zappala, J., joined.

Author: Larsen

[ 506 Pa. Page 351]

OPINION OF THE COURT

At issue in this appeal is the legality of the dismissal of appellant Theodore E. Clites from his position on the police force of Upper Yoder Township. We have concluded that there was a lack of substantial evidence to support appellant's dismissal and that appellant was denied a fair hearing prior to his dismissal.

Appellant served as Police Chief of Upper Yoder Township from October, 1974 until his removal from that position in October, 1981. On July 23, 1981, appellees Robert W. Hunt and Eugene T. Glova, and Laurence D. Eash, in their capacity as the Board of Supervisors of Upper Yoder Township, issued the following directive to appellant:*fn1

Effective immediately, you will work with Ass't Chief Hess in making available to him all police records, including all log books, past and present, and other similar

[ 506 Pa. Page 352]

    items pertinent [sic] to the operation of the police department.

In response to this directive, appellant telephoned Audrey Atkinson, Secretary-Treasurer for Upper Yoder Township, the following day and told her "that all the log books are in the Township Building." In fact, Assistant Chief Hess did find all the log books from 1980 and 1981, and three log books from 1979.

On July 31, 1981 and October 23, 1981, the Board issued additional directives to appellant, instructing him to turn over to Assistant Chief Hess " all log books from the date you became Chief of Police through present."

On October 30, 1981, the following action took place at a special meeting of the Board:*fn2

Mr. Hunt placed following motion on floor for Board's consideration:

That Theodore Clites be removed from the Police Department effective immediately. A written statement for the reasons of this action shall be furnished to Mr. Clites within five days of this date . . . .

Motion seconded by C.T. Madigan -- carried unanimously.

On November 3, 1981, a letter from the Board informed appellant that he was charged with violation of an official duty, inefficiency, neglect, intemperance, disobedience of orders and conduct unbecoming an officer, all based upon his failure to produce the requested log books for the years 1974 through most of 1979.*fn3 The letter concluded:

For the reasons stated herein, the Board of Supervisors has voted to remove you from the police force.

[ 506 Pa. Page 353]

Appellant requested a formal public hearing on the "charges" against him pursuant to § 4 of the Police Tenure Act, 53 P.S. § 814. At the hearing, it was stipulated that the missing log books "were disposed of by Chief Clites. Thrown away with trash." At the close of this hearing, the Board concluded that "[t]he destruction of the log books by Chief Clites is conduct unbecoming an officer, inefficiency, neglect, intemperance, disobedience of orders and violation of an official duty," and "affirm[ed its] motion of the 30th of October, 1981, removing Chief Clites from the Township of Upper Yoder Police Department."

Appellant appealed his dismissal to the Cambria County Court of Common Pleas and that court, after hearing additional testimony, modified the penalty imposed by appellees and ordered that appellant "be suspended for six (6) months" and "reinstated with reduction in rank to police officer." Exceptions were filed and the court of common pleas en banc sustained the exceptions, vacated the order of the court of common pleas, denied the appeal and upheld appellant's dismissal.*fn4 On appeal, the Commonwealth Court affirmed. Clites v. Township of Upper Yoder, 79 Pa. Commw. 28, 468 A.2d 878 (1983). We granted appellant's petition for allowance of appeal and we now reverse.

The Local Agency Law defines our standard of review in this case:

[T]he 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 ...


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