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CIVIL SERVICE COMMISSION WEST MIFFLIN v. JOHN D. VARGO (01/19/89)

decided: January 19, 1989.

CIVIL SERVICE COMMISSION OF WEST MIFFLIN, APPELLANT
v.
JOHN D. VARGO, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County, in the case of John D. Vargo v. Civil Service Commission of West Mifflin, No. S.A. 825 of 1985.

COUNSEL

Donald C. Fetzko, for appellant.

Ronald P. Koerner, Gatz, Cohen, Segal & Koerner, for appellee.

Judges Barry and Palladino, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 122 Pa. Commw. Page 644]

The Civil Service Commission of West Mifflin (Commission) appeals an order of the Court of Common Pleas of Allegheny County (trial court) reversing its decision to uphold a five-day suspension of John D. Vargo (Appellee). We reverse.

Appellee was employed as a police officer by the Borough of West Mifflin. As a result of prior incidents of damage to police vehicles and other borough property, the mayor of West Mifflin on September 20, 1984 posted a notice that further incidents of negligence or inattentiveness on the part of police officers that led to damage or theft of police vehicles would result in the imposition of appropriate discipline, up to and including discharge. Record Exhibit "C." On November 25, 1984, at approximately 4:45 A.M., Appellee and several other officers responded to a call at a local bar where patrons were creating a disturbance. Appellee, who was the driver of one of the vehicles that morning, pulled into the parking lot of the bar, exited the vehicle, and went inside along with his partner to assist in subduing the patrons.

While Appellee was in the bar, one of the patrons stole the police car which Appellee had been driving, and eventually drove the car off the road and down an embankment. As a result, the police car was totally destroyed. When other police officers later inspected the vehicle at the scene of the accident, the keys to the vehicle were found in the ignition.

By letter dated December 12, 1984, the mayor notified Appellee that he was to be suspended for a period of five (5) days, effective December 13, 1984, for his negligence in leaving the keys in the ignition of the police vehicle*fn1 Record Exhibit "D." The letter stated that

[ 122 Pa. Commw. Page 645]

Appellee was being suspended pursuant to section 1190(4) of The Borough Code (Code), Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. § 46190, which provides for suspension for inefficiency, neglect, intemperance, immorality, disobedience of orders, or conduct unbecoming an officer. On December 18, 1984, the Borough Council voted to uphold the suspension. Record Exhibit "A." Written notice of the Borough Council's Decision was sent to Appellee by letter dated December 19, 1984. Record Exhibit "B."

Appellee appealed to the Commission, which, after a hearing, upheld the suspension. The Commission determined that Appellee's conduct constituted negligence under section 1190 of the Code, 53 P.S. § 46190. Appellee then appealed to the trial court, which reversed the Commission's decision without taking additional evidence. The trial court concluded that there was no direct evidence to establish that Appellee left the keys in the ignition on the morning in question. Further, the trial court determined that even if Appellee negligently left the keys in the ignition, such negligence did not cause the theft and ultimate destruction of the vehicle. Accordingly, the trial court ordered that Appellee be reimbursed for five days lost wages and directed that record of the suspension be expunged from Appellee's personnel file.

On appeal to this court, the Commission contends that its finding that Appellee negligently failed to remove the keys from the ignition was supported by substantial evidence. The Commission also argues that the trial court erred in concluding that ...


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