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CIVIL SERVICE COMMISSION CITY PHILADELPHIA v. JANET WISEMAN (12/09/85)

decided: December 9, 1985.

CIVIL SERVICE COMMISSION OF THE CITY OF PHILADELPHIA, APPELLANT
v.
JANET WISEMAN, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Janet Wiseman v. Civil Service Commission of Philadelphia, No. 3764 March Term, 1983.

COUNSEL

Barbara W. Mather, City Solicitor, with her, Ralph J. Teti, Divisional Deputy City Solicitor, for appellant.

Lee W. Jackson, with him, Adam Radinsky, Kirschner, Walters, Willig, Weinberg & Dempsey, for appellee.

Judges Craig and Doyle, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 93 Pa. Commw. Page 359]

The Civil Service Commission of Philadelphia (Commission) appeals from an order of the Court of Common Pleas of Philadelphia County which reversed the Commission's decision, and directed reinstatement of Janet Wiseman (Appellee) to her position as school crossing guard.

Appellee was employed by the school crossing guard unit of the Philadelphia Police Department. While off duty from her position on December 6, 1981, Appellee forcibly entered the home of her daughter's neighbor, Anna Hirsch, and assaulted her. As a result of this altercation, Hirsch became injured and was forced to flee her home in search of help. When Hirsch returned shortly thereafter, Appellee and Appellee's daughter were waiting outside her home, and another altercation took place.

Appellee was charged with aggravated assault, recklessly endangering another person, burglary, criminal trespass and conspiracy as a result of a private criminal complaint filed by Hirsch. Appellee was later acquitted of these charges in a criminal proceeding.

On February 4, 1982, Appellee was dismissed from her position as a school crossing guard on the basis of her participation in the December 6 altercation. The dismissal stated that "[t]he above course of conduct indicates that you have little or no regard for your responsibility as a member of the Philadelphia

[ 93 Pa. Commw. Page 360]

Police Department." Appellee instituted an appeal with the Commission, and a hearing was held in which conflicting testimony concerning the incident was presented by Hirsch and by Appellee. The Commission resolved the factual questions against Appellee, and, finding that Appellee's conduct was not in keeping with her employment, concluded that there was just cause for the Department to dismiss her.

On appeal to the court of common pleas, that court found that, in permitting a dismissal on the basis of Appellee's off-duty conduct, the Commission had applied the standard for dismissal enunciated in Zeber Appeal, 398 Pa. 35, 156 A.2d 821 (1959). The court reasoned that the strict standard in Zeber Appeal applied only to conduct of policemen and firemen, and resulted from the special need for public respect and confidence in these individuals. The court concluded that the Commission erred in applying the Zeber Appeal standard in the present case because, although Appellee was employed by the Police Department, she did not have the same functions as a police officer, and thus the rationale justifying the stricter standard of conduct was not present. Accordingly, the court of common pleas reversed the decision of the Commission, and ordered reinstatement of Appellee to her former position. The Commission has taken the present appeal to this Court.

In reviewing a decision of the Philadelphia Civil Service Commission we must affirm unless constitutional rights have been violated, the provisions of the Local Agency Law have not been complied with, an error of law has been committed, or the findings of the Commission are not supported by substantial evidence. Strauss v. Civil Service Commission of Philadelphia, 40 Pa. ...


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