Argued: June 18, 2014.
Appealed from No. 2010-34399. Common Pleas Court of the County of Montgomery. Carluccio, J.
Scott E. Blissman, Philadelphia, for appellants.
E. Dunbar, Jr., Trappe, for appellee.
BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge. OPINION BY JUDGE LEAVITT. DISSENTING OPINION BY JUDGE COVEY.
MARY HANNAH LEAVITT, Judge
Lansdale Borough and the Lansdale Borough Civil Service Commission (collectively, Borough) appeal an order of the Court of Common Pleas of Montgomery County (trial court) that modified the Commission's discipline of George Johnson, a Borough police officer. Specifically, the trial court reversed the Borough's termination of Johnson's employment and ordered that he be reinstated after a 30-day suspension. In doing so, the trial court held, inter alia, the Commission's factual finding that Johnson made a false statement to a district justice and to a district attorney was not supported by substantial evidence. The trial court also held that Johnson's conduct warranted a suspension, not a termination and, thus, modified the Commission's discipline. Concluding that the trial court did not err or abuse its discretion in modifying the Borough's discipline, we affirm.
Factual and Procedural Background
Johnson, a Borough police officer since 1997, did not appear at a preliminary hearing on May 18, 2010, before the district justice in a DUI case in which Johnson had been the arresting officer. Because Johnson was not scheduled to work the day of the hearing, the police department could not give the prosecutor information that might have allowed the district justice to reschedule the preliminary hearing. In the absence of evidence, the district justice dismissed the DUI charges against the defendant.
A criminal complaint dismissed at a preliminary hearing may be reinstituted so long as the statute of limitations has not run. Commonwealth v. Thorpe, 549 Pa. 343, 701 A.2d 488, 489 (Pa. 1997). However, the decision to reinstitute charges must be made by the prosecutor. Pa. R. Crim. P. 544, comment. When Johnson returned
to work on May 19, 2010, he realized he had missed the preliminary hearing and began the process necessary to have the DUI charges reinstated.
On May 26, 2010, the Borough Chief of Police, Robert McDyre, called Johnson into his office to discuss his absence from the preliminary hearing. Sergeant Richard Bubnis and Sergeant Alex Kromdyk were also present for the interview, which lasted approximately 15 minutes. The interview was not recorded, and there is some disagreement about what was said there.
Johnson stated that he forgot about the preliminary hearing scheduled on a day when he was off work. Chief McDyre asked Johnson if he would try to reinstate the charges and whether reinstatement was even possible where the officer has forgotten. Johnson stated that he had seen the district justice and told him that he had been sick on the day of the hearing and, in addition, he had begun drafting a letter to the district attorney in an effort to get the charges reinstated. McDyre requested a copy of the draft letter, which Johnson retrieved from his computer; it stated as follows:
I did not attend the Preliminary Hearing because he [sic] was home sick. My department was unaware of this because I was on a scheduled day off and I did not notify them [sic] of my illness until I returned to work. [The district justice] was not notified by me of the situation until several days later and he had already dismissed the case.
McDyre read the letter and stated that it was a lie, in view of Johnson's statement earlier in the meeting that he had forgotten about the hearing. Johnson replied that he was, in fact, sick and in bed for most of that day. Johnson stated that, in spite of his illness, he would have attended the hearing had he remembered it. Concluding that Johnson had been untruthful to the district justice and in his draft letter to the district attorney, McDyre placed Johnson on administrative leave.
On June 10, 2010, the Borough conducted a Loudermill hearing. In attendance
were the Borough mayor, Sergeant Bubnis, Sergeant Kromdyk, as well as Johnson and his union representative, Officer Justin DiBonaventura. The purpose of the hearing, which lasted approximately five minutes, was to give Johnson an opportunity to explain why he should not be fired. Johnson stated that on May 17, 2010, he " called in sick" and did not work because of a sinus migraine headache. R.R. 267a. The next day, which was the day of the preliminary hearing on the DUI case, Johnson was not scheduled to work. Johnson left home to do an errand in the morning, but began to feel ill. He returned home, took medicine and went to bed. Concluding that Johnson had lied about his reasons for not appearing at the hearing, Chief McDyre recommended that Johnson's employment be terminated.
On June 18, 2010, the Borough issued the following statement of charges to Johnson:
1. You failed to appear as required at a preliminary hearing at Lansdale District Court on Tuesday May 18, 2010, resulting in the dismissal of that case. You were properly subpoenaed by the Lansdale District Court to appear and testify at this criminal proceeding. You did not notify anyone of any inability on your part to appear for this hearing. Further, this is [the] fourth occurrence in which you have failed to appear at court when subpoenaed to do so. This act constitutes a violation of the Code of the Borough of Lansdale, Civil Service Commission, Chapter Seven, Section 7.A., Subsections (1)(b) and (d) as well as Procedural Directive #6, Code of Conduct, Section I, Subsections B (2) and (4).
2. When you were questioned as part of an official investigation regarding the missed court hearing, you were ordered to answer honestly and completely. During the interview it was revealed
that you were untruthful as to the reason you failed to attend the hearing. This act constitutes a violation of the Code of the Borough of Lansdale, Chapter Seven, Section 7.A., Subsections (1)(b) and (d) and Procedural Directive #6, Code of Conduct, Section I, Subsection B (4).
3. You made false statements to the Court as to the reason you had missed the court proceeding. This act constitutes a violation of the Code of the Borough of Lansdale, Chapter Seven, Section 7.A., Subsections (1)(b) and (d) and Procedural Directive #6, Code of Conduct, Section I, Subsection B (4).
4. You prepared a document to the District Attorney's office in which you falsely stated the reason you had missed a preliminary hearing and you requested " re-arrest" permission based on the false statement. This act constitutes a violation of the Code of the Borough of Lansdale, Chapter Seven, Section 7.A., Subsections (1)(b) and (d) and Procedural Directive #6, Code of Conduct, Section I, Subsection B (4).
R.R. 635a-36a. On June 23, 2010, the Borough Council voted to terminate Johnson's employment. Johnson appealed this determination to the Commission, which conducted hearings over the course of four days.
Chief McDyre testified that, based upon his interview of Johnson at the May 26, 2010, meeting and Johnson's statements at the Loudermill hearing, he believed Johnson should be discharged.
Sergeant Bubnis, who was Johnson's supervisor, testified that when he learned that Johnson had failed to appear at the May 18, 2010, preliminary hearing, he reported that fact to Chief McDyre, who called the meeting on May 26, 2010. Bubnis testified that at this meeting, Johnson apologized for missing the preliminary hearing, which he had forgotten. Johnson further stated that he had apologized to the district justice, explaining that he had been sick that day. Bubnis stated that when Johnson was challenged by Chief McDyre about changing the explanation from forgetfulness to illness, Johnson stated that " one of the reasons he forg[o]t was because he was sick." R.R. 203a. Sergeant Alex Kromdyk also testified that Johnson stated at the May 26, 2010, meeting that he forgot about the hearing.
Johnson testified on his own behalf. He explained that on May 13, 2010, his seven-year-old son was attacked by his neighbor's pit bull and suffered significant injuries to his right thigh and left arm. On May 14th and 15th he worked his scheduled shifts. On May 16th he was not scheduled to work. On Monday, May 17th he awoke with a migraine headache, called in sick, took medicine and slept most of the day. Johnson testified that he has a long history of sinus problems, which often cause migraine headaches. Johnson's sinus problems have also caused bronchitis and pneumonia in the past.
Johnson testified that on May 18, 2010, the day of the preliminary hearing, he " woke up sore from the migraine headache." R.R. 269a. He went to the municipal building to vote in the primary and to follow up on the police report that he had filed about his son's dog bite. By noon, feeling worse, he went home, took medication prescribed for his sinus infection and went to bed. He did not realize that he had missed the preliminary hearing until he went to work the next day. He told Sergeant Bubnis that he missed the hearing because he had been sick and also that he had been " very upset by the issue of what happened to [his] son with [the] dog." R.R. 272a.
As to the May 26, 2010, meeting, Johnson's recollection was that he told McDyre
that he forgot the preliminary hearing for two reasons, i.e., his son's injury and his illness. Johnson recalled McDyre's insistence that Johnson had not been sick at all but had just forgotten about the hearing. When McDyre threatened to fire Johnson if he lied again, Johnson reiterated that he had not lied. Rather, he explained that his illness combined with his apprehension over his son's injury caused him to forget about the hearing.
Johnson also testified that, at the Loudermill hearing, he specifically asked McDyre why he believed Johnson had made false statements. McDyre replied that Johnson had changed his story for missing the hearing from forgetfulness to his son's injury and illness. Johnson responded that he had not lied; rather, he stated that he had forgotten about the hearing because his illness and his son's condition were foremost in his mind. Johnson confirmed that had he remembered the preliminary hearing, he would have appeared in spite of his illness.
Officer DiBonaventura, who has worked as a police officer for the Borough for 21 years, including 12 as a detective, testified on Johnson's behalf. DiBonaventura opined that McDyre's May 26, 2010, interview was procedurally flawed because there were no notes taken during the interview. Once McDyre believed Johnson to have lied, he should have written down the specific questions he had asked and Johnson's precise responses. Johnson should have then been allowed to read and sign the synopsis of the meeting, which would have resolved the discrepancies about what was said by whom that day. DiBonaventura further opined that a stenographic or audio recording of such an interview should be made where an officer's career is at stake.
DiBonaventura testified that he was present at Johnson's Loudermill hearing as a union representative and took notes. His notes indicated a disagreement between McDyre and Johnson about Johnson's statements at the May 26th meeting. Johnson stated that he had provided two reasons for missing the preliminary hearing. McDyre believed that Johnson had changed his story.
Next to testify for Johnson was Lawrence Miller, D.O., his family physician. Dr. Miller confirmed that Johnson has a long history of chronic sinusitis, including several bouts with pneumonia. Dr. Miller testified that at the end of March he prescribed Levaquin to address Johnson's sinus problems. When Dr. Miller saw Johnson on May 24, 2010, his congestion and cough were such that he ordered a computerized axial tomography scan of Johnson's sinuses. Dr. Miller opined that Johnson was sick on May 17 and May 18, 2010, because he was still sick on May 24, 2010.
Finally, Johnson offered the testimony of Detective Sergeant Joseph Bennis of the Montgomery Township Police Department. Bennis, who has known Johnson for several years, testified that on May 18, 2010, at approximately 11:00 a.m., he encountered Johnson and his wife in the municipal building. Johnson declined to shake Bennis' hand, stating that he was not feeling well and did not want to pass along any germs.
The Commission made findings on each of the Borough's four charges against Johnson. It sustained three of the charges and upheld Johnson's dismissal.
On Charge 1, failure to appear at the preliminary hearing, the Commission found that, by his own admission, Johnson did not attend the hearing and did not notify the district justice, assistant district attorney or the police that he would not attend. Accordingly, the Commission sustained Charge 1.
On Charge 2, failure to answer questions fully and honestly, the Commission held that the Borough did not
provide substantial competent evidence sufficient to convince the Commission that Officer Johnson's dissembling as to the reason for the missed hearing constituted ...