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TOWNSHIP MANAGER TOWNSHIP FALLS v. NICHOLAS STRILUK (06/03/85)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: June 3, 1985.

TOWNSHIP MANAGER OF THE TOWNSHIP OF FALLS, APPELLANT
v.
NICHOLAS STRILUK, APPELLEE

Appeal from the Order of the Court of Common Pleas of Bucks County in case of Nicholas Striluk v. Falls Township Board of Supervisors, No. 83-04579-05-6.

COUNSEL

Stephen J. Springer, Labrum and Doak, for appellant.

William L. Goldman, Jr., with him, William F. Coyle, for appellee.

Judges MacPhail and Barry and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 89 Pa. Commw. Page 605]

The Township of Falls (Township) and the Board of Township Supervisors (Board) appeal here from an order of the Court of Common Pleas of Bucks County directing the Board to reinstate Officer Nicholas Striluk (Appellee) to his former position on the Township's police force with three (3) months back pay. We affirm.

The relevant facts are undisputed. On May 19, 1983, Appellee was involved in an automobile accident while off-duty. As a result of the accident, Appellee

[ 89 Pa. Commw. Page 606]

    was charged with violating Section 3731 of the Vehicle Code, 75 Pa. C.S. § 3731.*fn1 The Township's Chief of Police suspended Appellee from duty, charging him with (1) committing a misdemeanor and (2) conduct unbecoming an officer. A hearing was held on May 31, 1983. On June 9, 1983, the Board resolved to suspend Appellee for nine (9) months without pay, effective May 31, 1983.*fn2

Appellee appealed, and the trial court ordered a hearing for the express purpose of presentation of supplemental testimony. On the date of the hearing, however, the trial court stated that a de novo hearing would be held. The Board did not object but requested a continuance, which was denied. At the conclusion of the de novo hearing, the trial court sustained the Board's determination that Appellee had committed serious misconduct which warranted discipline but modified the penalty imposed.

In this appeal, the Board presents two issues for our review: (1) whether the trial court erred in conducting a de novo hearing and (2) whether the trial court erred in modifying the penalty.

The Board argues that the trial court exceeded its scope of review in conducting a de novo hearing, citing to our decision in Lower Providence Township v. Nagle, 79 Pa. Commonwealth Ct. 322, 469 A.2d 338 (1984). In Nagle, we held that Section 754(b) of the Local Agency Law (Law), 2 Pa. C.S. § 754(b) defined the court of common pleas' scope of review where a full and complete record of the proceedings before the

[ 89 Pa. Commw. Page 607]

    local agency is made.*fn3 We reasoned that "since a full and complete transcript of the proceedings before the Board on the issues that were properly raised there, was forwarded to the court, we must conclude that the court improperly heard the appeal de novo." 79 Pa. Commonwealth Ct. at 329, 469 A.2d at 342 (emphasis added). In the instant case, the trial court specifically noted that "[f]or reasons unknown to us, whatever record was made before the Board of Township Supervisors was never made part of the appellate record." After a review of the record, we are of the opinion that the trial court did not abuse its discretion in conducting a de novo hearing pursuant to Section 754(a) of the Law.*fn4

The Board next contends that the trial court erred in modifying the original penalty imposed, citing Eppolito v. Bristol Borough, 19 Pa. Commonwealth Ct. 99,

[ 89 Pa. Commw. Page 608339]

A.2d 653 (1975).*fn5 In Eppolito, we held that when there is substantial evidence to support the charges and the Borough did not abuse its discretion in ordering a dismissal, it would be error for the trial court to modify the penalty. Because we specifically limited Eppolito to its own peculiar facts,*fn6 we do not view Eppolito as controlling.

In exercising our scope of review, we look to whether the trial court abused its discretion in modifying the penalty. "An officer's past record, the effects of his conduct on the morale of the police force and on the citizenry's respect for the force are all relevant factors in deciding the severity of the penalty." In Re: Appeal of Redo, 42 Pa. Commonwealth Ct. 468, 477, 401 A.2d 394, 398 (1979). Here, the trial court made specific findings relating to each of these considerations.*fn7 As in Redo, we cannot say that the trial court abused its discretion in modifying the Board's suspension. The decision of the trial court is, therefore, affirmed.

[ 89 Pa. Commw. Page 609]

Order

The order of the Court of Common Pleas of Bucks County at No. 83-04579-05-6, dated March 15, 1984, is affirmed.

Disposition

Affirmed.


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