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MATTER APPEAL CECIL A. HARRIS. CECIL A. HARRIS (08/09/85)

decided : August 9, 1985.

IN THE MATTER OF APPEAL OF CECIL A. HARRIS. CECIL A. HARRIS, APPELLANT


Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of In the Matter of Appeal of Cecil A. Harris, No. 1227 May Term, 1981.

COUNSEL

Jonathan Walters, Kirschner, Walters, Willig, Weinberg & Dempsey, for appellant.

Jesse Milan, Jr., Assistant City Solicitor, for appellee.

Judges Doyle and Colins, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 91 Pa. Commw. Page 48]

Cecil A. Harris (Appellant) appeals to this Court from an order of the Court of Common Pleas of Philadelphia County which affirmed a decision and order of the Philadelphia Civil Service Commission (Commission) denying Appellant's request for back-pay for approximately four months of a seven month period of suspension from employment.

[ 91 Pa. Commw. Page 49]

Appellant is employed as a tow-truck operator for the Philadelphia Police Department. On February 27, 1979, he was scheduled to work the night shift. Sometime after reporting to work at 10:30 P.M., he received orders to clear an area near a church for a funeral to be held the next morning. When he arrived at the scene, at approximately 1:00 A.M., he observed a 1970 Cadillac as one of the cars which, in his opinion, needed to be towed. Appellant testified before the Commission that the Cadillac was very dirty and in his judgment appeared to be abandoned. He removed the automobile from the scene and was in the process of towing it to the city garage when he was stopped by the police. The owner of the Cadillac (Mr. Coleman) testified that on the evening of February 27, 1979, he parked his car legally on the street in an unrestricted location just as usual, and, when he discovered it being towed away at approximately 1:30 A.M. the next morning, he immediately reported to the police that it had been stolen. The two officers making the stop of Appellant's truck testified that Mr. Coleman's automobile was dirty, but otherwise appeared to be in good condition and had a proper inspection sticker and tag. Appellant's supervisor, Theodore Hall, who also observed Mr. Coleman's vehicle after it had been towed, testified that, in his opinion, it was not an abandoned vehicle.

On March 2, 1979, Appellant was served with a notice of suspension and intent to dismiss. His dismissal was effective ten days after that. Within thirty days of the dismissal, he filed a timely appeal to the Commission. Hearings were scheduled for two dates in July of 1979, but both times were continued at Appellant's request pending resolution of criminal charges which had been filed against him on March 1, 1979 in connection with the towing incident. A hearing was finally held on October 31, 1979, by which

[ 91 Pa. Commw. Page 50]

    time the criminal charges had been quashed and Appellant had been reinstated to his former position by the Department. No testimony was taken at the Commission's hearing; the Commission merely requested submission of memoranda on the issue of back-pay. Following submission of these memoranda, Appellant's appeal was dismissed on February 7, 1980. A request for reconsideration was denied on February 20, 1980, and on April 15, 1980, Appellant appealed to the court of common pleas. The court remanded the matter to the Commission for an evidentiary hearing, which was held on March 4 and March 24, 1981. On April 4, 1981, the Commission issued a decision and order sustaining Appellant's request for back-pay for all but ninety days, concluding that a suspension for that length of time was warranted on the facts. This decision was affirmed on appeal to the trial court and it is from the trial court's order that Appellant now appeals.

The trial court correctly conducted its review within the confines of Section 754(b) of the Local Agency Law, 2 Pa. C.S. ยง 754(b), concluding that the Commission's adjudication was not in violation of any constitutional rights of Appellant and was reached in accordance with law, and that all necessary findings of fact were supported by substantial evidence in the record. Since the trial court took no additional evidence, our scope of review is also directed to the findings and conclusion of the Commission. Kujawa v. City of Williamsport, 67 Pa. Commonwealth Ct. 38, 445 A.2d 1348 (1982).

Appellant first argues that the Department was required as a matter of law to award him back-pay for all but thirty days of his unemployment because Philadelphia Civil Service Regulation 17.04 prohibits an "appointing authority" from ...


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