Appeal from the Order of the Court of Common Pleas of Philadelphia County, in the case of William Owens v. Philadelphia Civil Service Commission, No. 5112, October Term, 1986.
Betsy F. Skrnthal, Counsel, with her, Ralph J. Teti, Chief Deputy City Solicitor, for appellant.
Nancy B. G. Lassen, with her, Wayne Wynn, Kirschner, Walters & Willig, for appellee.
Judges Craig and Colins (p.), and Senior Judge Barbieri sitting as a panel of three. Opinion by Senior Judge Barbieri.
The Philadelphia Civil Service Commission (Commission) appeals the order of the Court of Common Pleas of Philadelphia County which reversed the order of the Commission dismissing William Owens (Owens) from his position as a civilian tow truck operator with the Philadelphia Police Department. We affirm the trial court.
Owens had been employed by the Philadelphia Police Department as a civilian tow truck operator since November of 1959. On the night of March 31, 1984, Owens was off-duty and at his home. At 2:30 a.m. he saw a man going down his street trying the door handles of cars. Owens thought the man was attempting to break into his car and attacked him with a baseball bat fracturing both the man's forearms, his lower left leg and inflicting multiple contusions to the head and face. Owens was subsequently convicted in a non-jury trial of aggravated and simple assault and recklessly endangering another person. On December 29, 1984, Owens was dismissed from his position pursuant to a notice of intent to dismiss which stated that this course of conduct "indicates you have little or no regard for your responsibilities as a member of the Philadelphia Police Department."
Owens appealed his dismissal to the Commission which held a hearing on June 17, 1986. The only evidence
introduced before the Commission was the notes of testimony in the criminal proceeding which stemmed from this incident. The criminal convictions were stipulated to. The Commission found that the City of Philadelphia could not continue on duty employees who cause serious bodily injury to other persons albeit mistakenly and off-duty. Just cause was demonstrated by the evidence of wrongdoing admitted.
The trial court reversed the Commission's order and reinstated Owens finding that no evidence had been proffered to show that this single off-duty incident would affect the efficiency or the morale of the department which employed Owens or that public confidence in the operation of municipal services would be impaired. The trial court concluded that Owens was not a police officer and did not have the extensive training and discipline afforded to and expected of police officers.
The issue in this case is whether the strict standard of conduct applied to the off-duty behavior of policemen and firemen in Zeber Appeal, 398 Pa. 35, 156 A.2d 821 (1959), may also be extended to civilian support personnel. The Commission contends this case is controlled by Civil Service Commission of Philadelphia v. Wiseman, 93 Pa. Commonwealth Ct. 358, 501 A.2d 350 (1985). In Wiseman the municipal employee worked as a civilian crossing guard for the Philadelphia Police Department. While off-duty, she entered the home of her daughter's neighbor and assaulted her. The employee was subsequently charged with aggravated assault and other criminal offenses and served with a notice of intent to dismiss stating that this conduct "indicates little or no regard for your responsibility as a member of the ...