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ROCCO SCALZI v. CITY ALTOONA (12/04/87)

decided: December 4, 1987.

ROCCO SCALZI, APPELLANT
v.
CITY OF ALTOONA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Blair County in the case of Rocco Scalzi v. City of Altoona, No. 88 C.P. 1984.

COUNSEL

Anthony C. Busillo, II, Mancke, Lightman & Wagner, for appellant.

Alex E. Echard, for appellee.

Judges Craig, Doyle and Barry, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 111 Pa. Commw. Page 480]

This is an appeal by Rocco Scalzi from an order of the Court of Common Pleas of Blair County, which dismissed Scalzi's appeal from a determination of the Altoona City Council (Council) dismissing Scalzi from his position as a policeman with the City of Altoona (City).

The Council found that Scalzi had initiated a physical and verbal confrontation with another police officer on August 6, 1983 and had initiated another dispute and behaved in an insubordinate manner on August 17, 1983. The Council concluded that such actions were violative of certain regulations of the City Police Department and hence directed that Scalzi be removed. Scalzi appealed to the common pleas court, which dismissed his appeal. Appeal to this Court followed.

Before this Court, Scalzi raises four arguments for our consideration. Because of our disposition of this matter we shall only consider two of them. Scalzi first contends that the mayor's participation as chairman of Council conducting the hearing after the mayor had, inter alia, preferred charges against him and reviewed testimony prior to the hearing, constituted impermissible commingling of prosecutorial and adjudicatory functions, and hence was violative of due process. The City

[ 111 Pa. Commw. Page 481]

    asserts first that this issue was waived because Scalzi failed to comply with Pa. R.C.P. No. 235 (pertaining to giving notice to the Attorney General when the constitutionality of a statute is challenged). Alternatively, the City contends that no impermissible commingling of functions on the part of the mayor occurred because the mayor merely did what various statutes within The Third Class City Code (Code), Act of June 23, 1931, P.L. 932, as amended, 53 P.S. §§ 35101-39701 permit or require him to do.

Taking the waiver issue first, we find the City's contention to be without merit. Pa. R.C.P. No. 235 pertains to situations where the challenge is to the constitutionality of a statute on its face. Here, Scalzi does not assert that any provision of the Code is unconstitutional on its face. Rather, he contends that the mayor's actions and the interplay between various statutory duties of the mayor has resulted in a due process violation in this case. Accordingly, we hold that Pa. R.C.P. No. 235 is not applicable to this case and, consequently, that Scalzi has not waived his right to assert a denial of due process.

It is not in dispute that the mayor actually preferred the charges against Scalzi. The City maintains that that action was taken pursuant to Sections 4408 and 2007 of the Code, 53 P.S. §§ 39408, 37007 respectively. Section 4408 pertinently provides:

All employes subject to civil service shall be subject to suspension by the director of the department for misconduct, or violation of any law of this Commonwealth, any ordinance of the city, or regulation of the department, pending action by the city council upon the charges made against any of such employes. On hearing before the city ...


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