Opinion
September 26, 1949.
November 14, 1949.
Municipalities — Employes — Policemen — Dismissal — Notice of charge — Hearing — Sufficiency — Evidence — Findings — Appellate review.
In a mandamus proceeding, in which it appeared that plaintiff after a police trial board hearing, approval by the mayor and appeal to the Civil Service Commission, was discharged from his position as patrolman, and in which the court below found that (1) the plaintiff was given sufficient notice of the charge against him, (2) a hearing was held and evidence presented to sustain the specification and (3) the facts specified and found warranted the verdict of guilty of conduct unbecoming an officer and plaintiff's dismissal, the order of the court below was affirmed.
Argued September 26, 1949. Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES, JJ.
Appeal, No. 190, March T., 1949, from order of Court of Common Pleas of Allegheny County, April T., 1948 B, No. 1026, in case of Harry Caldwell v. George A. Fairley, Director of Department of Public Safety of City of Pittsburgh et al. Order affirmed.
Mandamus proceeding.
The facts are stated in the opinion, by O'TOOLE, J., of the court below, THOMPSON, O'TOOLE and WEISS, JJ., as follows:
Plaintiff, after a Police Trial Board hearing, approval by the Mayor and appeal to the Civil Service Commission, was discharged from his position as patrolman and seeks by this action in mandamus to compel his reinstatement.
The written specification of the charge was: "That said, Harry Caldwell, was through with his tour of duty at 12:00 Midnight Saturday Jan. 26th and then put his motorcycle in front of the 7th Ave. Hotel and said wheel was there at 1:00 and 1:30 a.m. and then was driven by Ptl. Caldwell to Second and Grant Street and put in the driveway of the Amoco Gas Station and was then driven by a soldier name Pvt. Posey and got out of control and went across the Blvd. of Allies and struck a machine going west, all this is contrary to rules 2 and 4."
A police trial board was assembled, the plaintiff appeared, the presiding officer advised him of the charge, read the specification, and asked him if he was ready for a hearing. He answered that he was and at no time complained of the sufficiency or accuracy of the specifications. It appears that he understood the nature and particulars of the charge against him (the purpose of the specification) and undertook to defend against it.
After a full hearing, at which evidence was produced by both sides, the trial board found the plaintiff guilty of wilful disobedience of the rules and conduct unbecoming an officer and recommended that he be discharged. After this action had been approved by the Mayor the plaintiff appealed to the Civil Service Commission. This Commission, instead of merely reviewing the regularity of the action of the Police Trial Board, did more than it was required to do in that it heard additional testimony on behalf of the plaintiff. In any event, the Commission approved the dismissal.
"While a writ of mandamus may compel action where a right is clear, it cannot be treated as an appeal or writ of error to review the discretionary acts of subordinate tribunals." Homan v. Mackey, 295 Pa. 82; Crede v. Pittsburgh, 355 Pa. 369.
Our obligation here, and the limit of our authority here, is to review the record and determine whether the dismissal was according to law. "If there is admissible evidence, the weight of which the court is without authority to consider, to move the deliberative powers of the Commission, without manifestly abusing its discretion, in sustaining or reversing the action of the Director then the petition should be refused; if not, it should be granted." Raffel v. Pittsburgh, 340 Pa. 243.
Reviewing the record we are to determine:
1. Was the plaintiff given sufficient notice of the charge against him? He was. It has been held that the specifications need not be drawn with the technical accuracy of an indictment. Shellenberger v. Warburton, 279 Pa. 577. A reading of the specification here demonstrates the plaintiff was given ample information of the charge against him, sufficient to permit him to meet it if he was able.
2. Was a hearing held and evidence presented to sustain the specification. There was. As to this we are not to weigh the sufficiency of the evidence. Raffel v. Pittsburgh, supra. Nor are we permitted to say that on the same evidence we would have come to a different finding. "Where a person or body is clothed with judicial, deliberative or discretionary powers, and he or it has exercised such powers according to his or its discretion, mandamus will not lie to compel a revision or modification of the decision resulting from the exercise of such discretion, though, in fact, the decision may have been wrong." Souder v. Philadelphia, 305 Pa. 1.
3. Did the facts specified and found warrant the verdict "Guilty of . . . conduct unbecoming an officer," and the sentence, dismissal? Barring political and religious reasons, it has been held "What constitutes ample cause for removal within the limits fixed by the act must necessarily be largely a matter of discretion on the part of the head of the department." Thomas v. Connell, 264 Pa. 242. This is especially true of the police service where a semimilitary discipline is to be encouraged and greater strictness of enforcement and severity of punishment is to be permitted.
The preliminary objections should be sustained.
Plaintiff appealed.
Wilbur F. Galbraith, with him Charles D. Coll and Prichard, Lawler, Malone Geltz, for appellant.
Louis Rosenberg, Assistant City Solicitor, with him Anne X. Alpern, City Solicitor, for appellees.
The order of the court below is affirmed on the able opinion of Judge O'TOOLE.