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LOUIS W. BENVIGNATI v. CIVIL SERVICE COMMISSION (06/19/87)

decided: June 19, 1987.

LOUIS W. BENVIGNATI, APPELLANT
v.
CIVIL SERVICE COMMISSION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County, in case of Louis W. Benvignati v. Civil Service Commission, No. 777 April Term, 1985.

COUNSEL

F. Emmett Fitzpatrick, P.C., for appellant.

Susan Shinkman, with her, Handsel B. Minyard, City Solicitor, and Ralph J. Teti, Divisional Deputy City Solicitor, for appellee.

President Judge Crumlish, Jr., Judge Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri. Judge Colins did not participate in the decision in this case. Concurring Opinion by President Judge Crumlish, Jr.

Author: Barbieri

[ 106 Pa. Commw. Page 644]

In this civil service case, Appellant, Louis W. Benvignati, appeals here an order of the Court of Common Pleas of Philadelphia County dismissing his appeal from a decision of the Philadelphia Civil Service Commission (Commission). The Commission's decision upheld his dismissal from the Philadelphia Police Department. We affirm.

Appellant was discharged from the Philadelphia Police Department for conduct unbecoming an officer. The circumstances surrounding his discharge pertain to his performance with the Organized Crime Unit. There, he met a Corporal Charles Worrell and an Officer Thomas Liciardello who informed him that they had obtained information that illegal gambling was taking place at the residence of a Victor DeLuca. They further told Appellant that they had personally performed the surveillance of the premises that confirmed this information. Corporal Worrell and Officer Liciardello then directed Appellant to type out a search warrant, under his own name, for a search of DeLuca's residence. The warrant contained an affidavit by Appellant wherein

[ 106 Pa. Commw. Page 645]

    he swore under oath that the information contained in the warrant was true and correct and that he had personally received information from one he knew to be a reliable informant regarding criminal activity. The warrant also contained a statement that Appellant was personally involved in the surveillance of the DeLuca residence. The warrant was served and, while no gambling materials were found, a gun was found, the possession of which violated the terms of DeLuca's federal probation. At the federal parole violation hearing, Appellant testified regarding the execution of the warrant and explained that Corporal Worrell and Officer Liciardello were the source of his information and that he had no personal knowledge of the facts set forth in the warrant. The federal judge then granted a motion to dismiss the probation violation charges. The Philadelphia District Attorney charged Appellant with perjury and Appellant accepted three months' probation under the Accelerated Rehabilitative Disposition (ARD) program. Upon his successful completion of ARD, the perjury charges were withdrawn.

The Commission expressly stated that it found no mitigating circumstances to excuse Appellant's conduct and that there was just cause for his dismissal. On appeal, the common pleas court reviewed the evidence that was before the Commission and stated that Appellant's course of conduct in executing the search warrant and affidavit was conduct unbecoming an officer and that there was just cause for his dismissal.

In this appeal, Appellant contends that (1) the Commission erred as a matter of law in concluding that his actions constituted conduct unbecoming an officer; (2) the Commission failed to consider his service record when it assigned the penalty of dismissal; and (3) the police department failed to sustain its burden of proving that the penalty of dismissal was appropriate. We

[ 106 Pa. Commw. Page 646]

    shall discuss these issues in the order stated, ever mindful that under our limited scope of review under Section 754(b) of the Local Agency Law, 2 Pa. C.S. § 754(b), we must affirm the Commission's adjudication unless (1) the Appellant's constitutional rights were violated; (2) there was non-compliance with the provisions of the Local Agency Law in the proceedings before the Commission; (3) an error of law was committed; or (4) necessary findings of the Commission are unsupported ...


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