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STUART ROSS v. CIVIL SERVICE COMMISSION (07/08/86)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: July 8, 1986.

STUART ROSS, APPELLANT
v.
CIVIL SERVICE COMMISSION, CITY OF PHILADELPHIA, APPELLEE

Appeal from the Order of the Court of Common Pleas of Philadelphia County, in case of Stuart Ross v. Civil Service Commission, No. 1215 February Term, 1984.

COUNSEL

F. Emmett Fitzpatrick, Jr., with him, Michael A. Tier, for appellant.

John P. Straub, Deputy City Solicitor, for appellee.

President Judge Crumlish, Jr., Judge Barry, and Senior Judge Blatt, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 98 Pa. Commw. Page 566]

Stuart Ross was dismissed from the Philadelphia Police Department for conduct unbecoming an officer. The City Civil Service Commission and the Philadelphia County Common Pleas Court order upheld Ross' discharge. Ross appeals the common pleas court order; we vacate and remand.

[ 98 Pa. Commw. Page 567]

Ross was discharged for (1) making a false arrest, (2) knowingly making a false entry in a department report, (3) failing to report the existence of an illegal activity and (4) being arrested and charged with bribery and related criminal counts.*fn1

On August 25, 1982, Ross, on his seventh day of assignment to the vice squad in the 18th Police District, arrested Tyrone Rowland for participating in an illegal lottery operation. Upon his release from detention the following day, Rowland telephoned police authorities and stated that his arrest was part of a pre-arranged agreement between Vincent Garrett, the proprietor of an illegal lottery operation, and certain unnamed local police officers. The Police Internal Affairs Bureau initiated an investigation into these allegations and subsequently arrested Ross. Upon his arrest, Ross was notified that he would be dismissed from the police force. A Philadelphia County Common Pleas Court Judge acquitted Ross of all criminal charges.*fn2

The Commission, after hearings, upheld Ross' discharge because it found the testimony of Rowland and the Internal Affairs investigator to be credible and the testimony of Ross to lack credibility.

This Court must affirm a Commission adjudication unless an employee's constitutional rights were violated, an error of law was committed, any procedural irregularities exist, or the findings of fact are not supported by substantial evidence. Foley v. Civil Service Commission, City of Philadelphia, 55 Pa. Commonwealth Ct. 594, 423 A.2d 1351 (1980).

[ 98 Pa. Commw. Page 568]

Ross contends that the Commission erred as a matter of law in permitting the results of a lie detector test administered to Rowland to be introduced into evidence and that the Commission abused its discretion in determining the credibility of Rowland and himself.*fn3

The record reveals that Rowland was the first witness to testify at the Commission hearing. After giving his account of his "fall-guy" arrest,*fn4 Rowland was repeatedly cross-examined on inconsistencies between his current testimony and his testimony at Ross' criminal hearings.*fn5 Rowland's testimony conflicted as to (1) his conversation with the arresting officers, (2) whether he was ever searched during his arrest and (3) whether he threatened to burn Garrett's house.

An inspector from the Internal Affairs Bureau testified next, and he stated that a surveillance was established to investigate Rowland's allegations. Although Ross was never observed participating in subsequent "fall-guy" arrests, other officers were discovered. The inspector testified that the department verified Rowland's credibility by giving him a polygraph test. A Commissioner

[ 98 Pa. Commw. Page 569]

    overruled Ross' objection to the test's admissibility and stated that the Commission could use polygraph results to determine an individual's credibility.*fn6

In Township of Silver Spring v. Thompson, 90 Pa. Commonwealth Ct. 456, 496 A.2d 72 (1985), we held that the results of a polygraph examination given to a police officer were inadmissible at his dismissal hearing absent evidence that polygraph tests are scientifically reliable.*fn7 We believe that the results of the polygraph test given to the witness in this case are also inadmissible.

[ 98 Pa. Commw. Page 570]

The record is void of any evidence demonstrating the scientific reliability of the tests. Moreover, the officer who administered the test was not present at the hearing.

We reject the Commission's argument that since the polygraph results are not mentioned in its opinion, we should assume that it did not rely on them in making its decision.

We are convinced that the admission of the polygraph test results so tainted Ross' hearing that the order must be vacated and a new hearing be held.

The record reveals little corroboration of Rowland's testimony as to Ross' conduct absent the test results. The Internal Affairs Bureau had no firsthand knowledge of Ross' conduct on the day Rowland was arrested. However, it is clear that Rowland spent more than twenty-four hours incarcerated and not four hours which he believed he would. Ross' complicity with a "fall-guy" arrest or protection of an illegal lottery operation is not demonstrated anywhere else in the record.*fn8

However, it is the duty of the Commission and not this Court to determine the credibility of witnesses testifying before it. Civil Service Commission of Philadelphia v. Saladino, 47 Pa. Commonwealth Ct. 249, 408 A.2d 178 (1979).

The common pleas court order is vacated. The Commission's order is vacated and this case is remanded

[ 98 Pa. Commw. Page 571]

    to the Commission for a new hearing in which the results of the polygraph test given to Rowland shall not be admitted unless their scientific reliability is established by expert testimony.

Order

The Philadelphia County Common Pleas Court order, No. 1215 February Term 1984, dated November 9, 1984, is vacated. The Philadelphia Civil Service Commission's order dated January 25, 1984, is vacated and this case is remanded to the Civil Service Commission for a new hearing consistent with the foregoing opinion.

Jurisdiction relinquished.

Disposition

Orders vacated. Case remanded to Commission.


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