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Agostino v. Township of Collier

March 26, 2009


The opinion of the court was delivered by: Judge McGINLEY

Argued: January 27, 2009



David J. Agostino (Agostino) appeals from the order of the Court of Common Pleas of Allegheny County (common pleas court), which affirmed the decision of the Civil Service Commission of the Township of Collier (Commission) to grant Agostino an Honorable Discharge.

Agostino became a Township of Collier (Township) police officer in July of 1998. The Township is a First Class Township duly organized under the First Class Township Code, Act of June 24, 1931, P.L. 1206, as amended, 53 P.S. §§ 55101 - 58502. On August 15, 2004, Agostino was seriously injured in an off-duty motorcycle accident. As a result, he lost his sense of smell.*fn1

Agostino returned to duty as a patrol officer on July 31, 2006. Prior to his return to duty, Agostino passed a physical exam arranged by the Township. During the exam, the physician neither tested Agostino's sense of smell nor questioned him about it. Agostino was stationed in an administrative capacity until he was certified by the Municipal Police Officers' Education and Training Commission (MPOETC) physical performance criteria to serve in the field. Once Agostino was re-certified he patrolled with another officer, John Andrea, for approximately one month. Agostino then returned to full duty.

By letter dated October 10, 2006, the Executive Board of the Collier Township Police Association (CTPA) reported to Chief Dan Rearick (Chief Rearick) that Agostino informed several police officers that he had lost his sense of smell as a result of his motorcycle accident. Because of Agostino's inability to smell, the CTPA was concerned about Agostino's ability to safely perform his police duties and the potential threat to the safety of other police officers, first responders, and the general public.

A Notice of Honorable Discharge, dated March 15, 2007, notified Agostino that the Township Board of Commissioners had voted at a public meeting on March 13, 2007, to honorably discharge him from service with the Township. Agostino was Honorably Discharged on the ground that he was physically unable to perform his police duties because of he lacked a sense of smell. The Honorable Discharge was based upon Agostino suffering from a "physical or mental disability affecting his ability to continue in service," pursuant to Section 644(1) of the First Class Township Code,*fn2 53 P.S. § 55644(1), and Section 6.1(a)(1) of the Collier Township Civil Service Rules and Regulations*fn3, on the ground that his inability to smell rendered him unfit to perform the duties of a police officer.

Agostino appealed and a hearing was held before the Commission on July 19, 2007. On October 3, 2007. The Commission made the following findings of fact:

1. Officer David Agostino does not deny, and in fact, admits that he is unable to smell . . . .

4. Exhibit 2 of the Township, a letter of Dr. Carl H. Snyderman of the University of Pittsburgh Physicians University Ear, Nose & Throat Specialists . . . states, in addition to noting that the officer [Agostino] suffered a 'complete loss of smell' that: 'The majority of patients do not recover olfactory function in such situations. I do no think there is any potential for further recovery of function . . . .'

5. . . . [A] letter of Officer Rick Lamb to then Chief of Police of Collier Township, Daniel Rearick, stated the beliefs of members of the . . . [CTPA] and other police officers, of their concern regarding a 'potentially dangerous situation . . . .'

He cited the dangers associated with the performance of duty by a police officer who lacks a sense of smell and stated that the 'sense of smell is crucial to the everyday tasks of a police officer, no matter where they are employed.' He referred to instances where the sense of smell is essential and suggested situations where there are hazardous material spills, natural gas and propane leaks and ruptures that required immediate attention, DUI and drug instances requiring instant action, and the fact that officers are often the first on the scene at accidents where a keen sense of smell can mean the difference between life and death . . . .

6. The Township . . . introduce[d] a series of police incident reports, which . . . involved Officer Agostino, or incidents in which, had Officer Agostino been involved, he would not have been able to respond properly. These reports provided incidents and the consequences of not being able to identify the smell of alcohol on drivers who had been apprehended for speeding, etc. Other incident reports illustrated the apprehension of, and arrest of persons arising from the detection by smell of marijuana . . . .

7. The Chief of Police of Dormont Borough, a community near the Township . . ., Chief Russell J. McKibben explained . . . his review of the hypothetical situation presented to him by counsel for the Township . . . . . . . .

He concluded . . . that 'I see no possible way that the individual [Agostino] can perform the essential functions of his job . . . .'

8. Acting Chief of Police of Collier Township, Thomas

D. Devin testified . . . . He further discussed the schedules of the police officers of the Township and the continuous need for officers to fill the time frames due to vacations, holidays, sickness, etc.

He noted that 2 officers were required to be on duty as a minimum at all times, that at present the township had 13 police officers, and discussed the fact that . . . Township Police served as first responders in most incidents . . .

He further opined the need of these officers to be able to smell in most, if not all of their duties . . . .

9. Officer Agostino testified . . . . He did not deny his disability and admitted that he was unable to smell. He averred that he is able to conduct the duties of a police officer and that he can compensate for his inability to smell. He suggested that he can detect a DUI by observing the walk or gait of a subject, that he can observe fuel and gas emergencies by seeing smoke, and other visual observations. He testified that no officers had complained to him about his lack of sense of smell . . . and further suggested that there were other duties he could perform without being dismissed.

10. The Commission hereby adopts the testimony given to it by the various township witnesses, and the observations contained in the various written reports as set out in Paragraphs 1 through . . . 8 above. It finds that the conclusion of the Police officers themselves, the Acting Chief of Police, the facts and opinion submitted by Chief McKibben demonstrate the need of the sense of smell in instances where the police officer is the first responder, or/and where the officer is the person responsible for determine [sic] the propriety of further investigation or arrest.

11. Furthermore, the Commission was not impressed with the opinion of Officer Agostino that he does not require a sense of smell to perform his duties . . . .

Decision of the Civil Service Commission of the Township of Collier (Commission Decision), October 3, 2007, Findings of Fact (F.F.) Nos. 1, 4-11 at 3-7; Reproduced Record (R.R.) at 12a-16a. The Commission concluded that the Township presented sufficient evidence to support its decision to honorably discharge Appellant. Agostino appealed to the common pleas court, which affirmed.

On appeal,*fn4 Agostino contends that the Commission erred: (1) in arbitrarily and capriciously disregarding evidence that he was able to perform his police duties at all times by compensating for his loss of sense of smell; (2) in accepting the opinion testimony of various witnesses who appeared before the Commission; (3) in arbitrarily and capriciously disregarding the fact that a sense of smell is neither listed as an essential function in the job description of a police officer as outlined by the MPOETC, nor tested as part of any physical examination required to become a police officer; and (4) in using the preponderance of evidence standard instead of the substantial evidence standard of proof.

Whether the Commission Arbitrarily and Capriciously Disregarded Evidence that Agostino was able to Perform his Police Duties

Agostino contends that the Commission erred when it arbitrarily and capriciously disregarded evidence that he was able to ...

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