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CITY PHILADELPHIA v. FRATERNAL ORDER POLICE AND ALBERT MAZZO (05/06/87)

decided: May 6, 1987.

CITY OF PHILADELPHIA, APPELLANT
v.
FRATERNAL ORDER OF POLICE AND ALBERT MAZZO, APPELLEES



Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Fraternal Order of Police and Albert Mazzo v. City of Philadelphia, No. 2380 December Term, 1985.

COUNSEL

Ralph J. Teti, Divisional Deputy City Solicitor, for appellant.

Anthony J. Molloy, Jr., Mozenter, Molloy & Durst, for appellees.

Judges MacPhail and Barry, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 105 Pa. Commw. Page 640]

The City of Philadelphia (City) has appealed from an order of the Court of Common Pleas of Philadelphia County which vacated an arbitrator's award and directed the reinstatement of Albert Mazzo (Appellee) to his position as a Philadelphia Police Lieutenant. We reverse.

On March 9, 1984, Appellee was indicted*fn1 by a federal investigating grand jury on charges involving his alleged acceptance of monthly payments from certain individuals in return for protection against police seizure of video poker machines which were being used for illegal gambling purposes. Appellee was suspended immediately following his indictment and was subsequently dismissed on or about March 26, 1984. The Fraternal Order of Police (FOP) thereafter filed a timely grievance on behalf of Appellee, the resolution of which was delayed pending trial on the criminal charges. On November 27, 1984, Appellee was acquitted by a federal

[ 105 Pa. Commw. Page 641]

    jury of all charges against him.*fn2 Thereafter, Appellee's grievance was reviewed and denied by the City. The FOP subsequently filed a demand for arbitration.

An arbitration hearing was held on June 13, 1985, at which time the arbitrator heard testimony regarding the alleged conduct which had provided the basis for Appellee's federal indictment and admitted excerpts from the testimony of pertinent witnesses at the federal trial. Based on the live testimony presented at the hearing, the arbitrator concluded that the City had established just cause for its dismissal of Appellee and, accordingly, denied the grievance. The arbitrator also concluded that although Appellee was dismissed solely on the basis of the charges listed in the federal indictment, the arbitrator was not bound to follow the jury's acquittal judgment in considering the grievance before him.

On appeal to the court of common pleas, the sole issue raised by Appellee and the FOP was whether or not the arbitrator erred in failing to accept the federal jury's acquittal of Appellee as dispositive of the issue of just cause.*fn3 The common pleas court agreed that the arbitrator had erred as a matter of law and concluded that the jury's verdict was binding in the arbitration proceeding. In issuing its ruling, the common pleas court concluded that:

[ 105 Pa. Commw. Page 642]

[W]hen an employee is dismissed solely on the basis of conduct set forth in a criminal indictment, with no independent investigation conducted by the City at any time to support the employee's dismissal, and the employee is subsequently acquitted of all wrong doing, the Arbitrator may not substitute his ...


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