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CIVIL SERVICE COMMISSION v. THOMAS A. DILLON (01/17/86)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 17, 1986.

CIVIL SERVICE COMMISSION, CITY OF PHILADELPHIA, APPELLANT
v.
THOMAS A. DILLON, APPELLEE

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.

COUNSEL

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.

Author: Craig

[ 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 responsible for the actions themselves, without

[ 94 Pa. Commw. Page 234]

    regard to any intentions which he may or may not have had concerning their effect. Although we specifically do not import the M'Naghten Rule into this civil matter from Dillon's criminal case, the parties' stipulations on this record, as to the existence of his psychiatric disability, negate the possibility of any finding or conclusion that the unbecoming conduct consisted of voluntary actions by Dillon.

Accordingly, we affirm Judge Lord's sound decision.

Order

Now, January 17, 1986, the order of the Court of Common Pleas of Philadelphia County dated January 26, 1984, is affirmed.

Disposition

Affirmed.

Dissenting Opinion by Judge Palladino:

I respectfully dissent.

When, as here, an appeal is taken from an adjudication of a local agency, and a full and complete record of the agency's proceedings was made, the Court of Common Pleas and this Court are required to affirm the agency's adjudication unless constitutional rights have been violated, an error of law has been committed, procedural rules have been violated or findings of fact are not supported by substantial evidence. 2 Pa. C.S. ยง 754(b). In the case at bar none of the conditions allowing reversal have been met. We must, therefore, reverse the trial court and affirm the adjudication of the Commission.

The initial burden of proving that Dillon had committed conduct unbecoming an officer lay with the Philadelphia Police Department. See Doerr v. Commonwealth, Liquor Control Board, 88 Pa. Commonwealth Ct. 610, 491 A.2d 299 (1985). As the majority notes, conduct unbecoming an officer is "any conduct which adversely affects the morale or efficiency

[ 94 Pa. Commw. Page 235]

    of the bureau to which he is assigned." It is also "any conduct which has a tendency to destroy public respect for municipal employees and confidence in the operation of municipal services." The undisputed evidence clearly establishes that Dillon's conduct was conduct unbecoming an officer: while he was off-duty, Officer Dillon fired shots at a passing motorist and he also shot and seriously wounded another individual. Officer Dillon's actions, therefore, indicate more than an inability on his part to fulfill his official duties. Rather, they are so contrary to a police officer's duty to ensure the public's safety that the Commission could reasonably find that Officer Dillon's conduct adversely affected both the morale of the police department and the public's confidence in the abilities and qualifications of the department's officers.

The burden of proof then shifts to Dillon to establish justification for his acts. The majority holds that "the facts must at least show that the officer's conduct was voluntary." The majority relies, however, upon a stipulated fact showing only that Dillon was not able to distinguish between right and wrong. The majority would have us believe that Dillon's inability to distinguish right from wrong is the equivalent of a lack of volition and, therefore, this inability justifies his conduct.

While I am willing to grant that a truly involuntary act may justify conduct which would otherwise be conduct unbecoming an officer, I am unable to agree that an inability to distinguish right from wrong renders an act involuntary. I would, therefore, conclude that Dillon did not meet his burden of proof.

Because the grounds for finding conduct unbecoming an officer have been established, I would affirm the adjudication of the Commission. Consequently, the decision of the trial court, reversing the Commission's determination, should itself be reversed.


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