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decided: December 6, 1985.


No. 61 E.D. Appeal Docket, 1985, Appeal from the October 31, 1984 Order of the Commonwealth Court at No. 3182 C.D. 1983. 85 Pennsylvania Commonwealth 643; Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ.

Author: Flaherty

[ 509 Pa. Page 318]


We granted the petition for allowance of appeal of Henry H. Brown to consider the propriety of a Commonwealth Court panel's affirmance of Sgt. Brown's dismissal from the Pennsylvania State Police. Sgt. Brown was charged with violating state police field regulations concerning unbecoming conduct, conformance to laws and competence.*fn1 The

[ 509 Pa. Page 319]

    facts are aptly set forth in the lower court opinion as follows:

The first two charges arose out of an incident which occurred on February 23, 1983. Although there is conflicting testimony regarding the events of that evening, substantial evidence supports the board's findings that during an altercation between Brown and a female acquaintance on a street in the city of Lancaster, Brown engaged in threatening and physically abusive action.*fn4 His actions and loud words prompted people nearby to summon the Lancaster police. Brown argued with the responding officers, who took him into custody for disorderly conduct, but soon released him without filing formal charges. The board concluded (1) that Brown had conducted himself in a manner unbecoming a police officer, and, (2) having engaged in disorderly conduct under section 5503 of the Pennsylvania Crimes Code, was therefore in violation of the conformance-to-laws field regulation.

In passing on the third charge facing Brown, the board reviewed his past disciplinary action reports relevant to the board's consideration of the charge of incompetency; the applicable field regulation provides that a written record of disciplinary actions detailing repeated infractions is prima facie evidence of incompetence.

Despite documentation of twenty instances of disciplinary action during Brown's fifteen years with the state police, the board voted 2 to 1 against a finding of incompetence. The board imposed a thirty-day suspension for the conformance-to-laws violation, but recommended that the commissioner dismiss Brown for unbecoming conduct, which the commissioner did.

[ 509 Pa. Page 320]

    court martial. Thus, on its face, the technical requirement of Soja, to-wit, revision of the manual, was not complied with in this case. However, the record contains sworn testimony of the Trial Judge Advocate that the spirit of Soja has been complied with at all times since the date of that decision.*fn2 As the underlying incident giving rise to these proceedings did not occur until February 23, 1983, almost two months after the date of our decision in Soja, on this record we must presume that the state police complied with the spirit of that ruling. Quod fieri debet facile praesumitur.

Appellant argues the failure of the state police to forward appellant's own version of the incident of February 23, 1983 to the Governor when approval for the court martial was sought denied him due process of law. This argument is without merit. The court-martial board is the body charged with the responsibility to hear all evidence, resolve issues of credibility and make factual findings, 71 P.S. § 251(b)(2) (Supp. 1985). Because the Governor's involvement is limited to review of written statements, he is powerless to resolve the issues of credibility that would necessarily result from being presented with two versions of the underlying incident. Thus, presenting the Governor with the employee's version of the incident out of which court-martial proceedings are urged cannot further a determination of the question whether seeking the employee's termination from the force is warranted. As artfully stated by Judge Craig, below: "The Governor's role at this level is not to weigh conflicting evidence and issue an ultimate adjudication of guilt or innocence, but only to make a preliminary determination as to whether the charges warrant convening the court martial board, analogous to a determination of probable cause to issue an arrest warrant.

[ 509 Pa. Page 322]

    or all of the findings and conclusions of the board were without support in the record, or resulted from a mistake of law, as could any reviewing court. When the Commissioner imposes discipline, he may disregard the recommendation of the board and render discipline which is either more or less severe than that recommended by the board. His ultimate decision, accepting or rejecting the board's recommendation, could be based upon an independent policy determination regarding the suitability of the discipline, or upon his determination of the propriety of the findings and conclusions of the board. In either case, unless ...

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