Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Thomas A. Dillon v. City of Philadelphia, Civil Service Commission, No. 2156 August Term, 1981.
Ralph J. Teti, Divisional Deputy City Solicitor, with him, John P. Straub and Barbara W. Mather, City Solicitor, for appellant.
Benjamin Paul, for appellee.
Judges Craig, Barry and Palladino, sitting as a panel of three. Opinion by Judge Craig. Dissenting Opinion by Judge Palladino.
[ 94 Pa. Commw. Page 232]
The Civil Service Commission of the City of Philadelphia appeals from a decision of the Court of Common Pleas of Philadelphia County which reversed the commission's affirmance of Thomas A. Dillon's dismissal from the Philadelphia Police Department due to conduct unbecoming an officer, and concluded that the proper mode of separation from that service was by medical discharge on account of mental illness.
The "conduct unbecoming an officer" allegedly furnishing the "just cause" for Dillon's dismissal occurred in November, 1980, when Dillon shot and wounded citizens on two separate occasions. The department suspended Dillon and, effective December 14, 1980, dismissed him. The victims filed criminal charges against Dillon, but the court found him not guilty because of insanity. After the verdict, the police department refused to reconsider Dillon's dismissal.
On appeal the parties stipulated at the commission hearing as to Dillon's hospital records, showing that Dillon suffered from paranoid schizophrenia. The parties further stipulated that if Dillon's treating psychiatrist had testified before the commission he would have stated that Dillon's mental disease totally disabled him because it caused him not to know the difference between right and wrong. The commission affirmed the department's action.
On further appeal to the trial court, Judge Lord reversed, holding that "[w]hen conduct is alleged to be conduct unbecoming an officer, and that conduct
[ 94 Pa. Commw. Page 233]
can be connected to a serious medical disability, that conduct cannot be considered conduct unbecoming an officer." The trial judge ordered that, as of the actual dismissal date of December 14, 1980, Dillon be deemed to have been separated from the department because of his medical inability to perform his required duties as an officer and retroactively awarded Dillon all benefits that he would have been entitled to receive from that date. The judge stated his intention that the department retire Dillon with all appropriate benefits. We agree with the result.*fn1
Clearly, our judicial decisions do not require proof of any mens rea in order to charge an officer with unbecoming conduct. No judicial doctrine requires the employing agency to establish that the violation was intentional in the sense of showing that the officer intended to accomplish the essential result -- the impairment of the morale or efficiency of the service, or of the public's respect for the service.*fn2
However, for an officer to be chargeable with such a breach, the facts must at least show that the officer's conduct was voluntary, so that he could be shown to be ...