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STEPHEN PERRY v. PHILADELPHIA CIVIL SERVICE COMMISSION (08/10/87)

decided: August 10, 1987.

STEPHEN PERRY, APPELLANT
v.
PHILADELPHIA CIVIL SERVICE COMMISSION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Stephen Perry v. Philadelphia Civil Service Commission, No. 3512, February Term, 1985.

COUNSEL

Andrew F. Erba, with him, Terry L. Fromson, Community Legal Services, Inc., for appellant.

Kenneth Smukler, Assistant City Solicitor, for appellee.

Judges Colins and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Colins. Judge Palladino dissents.

Author: Colins

[ 108 Pa. Commw. Page 322]

Stephen Perry, an officer of the Philadelphia Police Department (Department), appeals an order of the Court of Common Pleas of Philadelphia County which

[ 108 Pa. Commw. Page 323]

    affirmed an order of the Civil Service Commission of the City of Philadelphia (Commission), in turn affirming Officer Perry's dismissal from the force for conduct unbecoming an officer.*fn1

The incident which precipitated his dismissal occurred on November 30, 1981 when Officer Perry, then on medical leave of absence because of mental illness, telephoned the Commanding Officer of the 17th District Police Department and threatened to kill the Mayor and the Police Commissioner unless he was arrested. Officer Perry was arrested and transported to the police station where he readily admitted placing the telephone call and repeated his threats. Following the incident, he was suspended and, ultimately, discharged by the Department, effective December 14, 1981. Criminal charges arising from this incident were filed against Officer Perry but he was found not guilty by reason of insanity. He then appealed his dismissal to the Commission.

Following hearings, the Commission determined that Officer Perry had "clearly demonstrated" that he was "mentally ill and not responsible for his actions" on the date in question. However, the Commission noted that it was unaware of authority providing for a defense of mental illness in a civil action such as a dismissal proceeding, and affirmed the Department's action in dismissing Officer Perry.

[ 108 Pa. Commw. Page 324]

Upon appeal, the trial court affirmed the Commission's determination. In particular, the trial court noted the testimony of Officer Perry's treating physician to the effect that his condition "[might] be a Bipolar disorder which can be episodic, and is currently in remission" as supporting the Commission's decision that reinstatement was inappropriate.

This Court has had the opportunity of considering a strikingly similar matter in Civil Service Commission v. Dillon, 94 Pa. Commonwealth Ct. 231, 518 A.2d 869 (1986). The police officer therein was dismissed after he shot and wounded citizens on two separate occasions. The parties stipulated at the Commission hearing as to Officer Dillon's hospital records, which revealed that he suffered paranoid schizophrenia, and further stipulated that, had his treating psychiatrist testified before the Commission, he would have stated that Dillon's mental disease prevented his distinguishing ...


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