Appeal of Zeber

• Decision Date: 30 December 1959
• Citation: 398 Pa. 35,156 A.2d 821
• Parties: In re Appeal of William G. ZEBER.
• Court: Pennsylvania Supreme Court

Page 821

156 A.2d 821

398 Pa. 35

In re Appeal of William G. ZEBER.

Supreme Court of Pennsylvania.

Dec. 30, 1959.

Norman Paul Wolken, Norman Landy, Wolken & Landy, Pittsburgh, for appellant.

David Stahl, City Solicitor, Joseph M. Tague, Asst. City Solicitor, Pittsburgh, for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R. JONES, COHEN, BOK and McBRIDE, JJ.

COHEN, Justice.

This is an appeal under section 6 of the Act of June 27, 1939, P.L. 1207, 53 P.S. § 23496 from an Order of the County Court of Allegheny County affirming the action of the Civil Service Commission of the City of Pittsburgh dismissing appellant from his employment in the Pittsburgh Fire Department.

On September 16, 1954, appellant was arrested in the apartment of a sixteen-year-old girl, alleged to be mentally retarded. The police charged Zeber with rape, adultery, contributing to the delinquency of a minor, and, upon information received concerning an earlier incident, with indecent assault upon another child but ten years old. The following day Zeber was suspended from duty pending a fire trial board hearing. On September 28, 1954, the Trial Board of the Bureau of Fire met to hear charges of unbecoming personal conduct against Zeber which constitutes justifiable grounds for disciplinary action against a fireman under 53 P.S. § 23495. ¹ Appellant Zeber appeared and was represented by counsel.

At the hearing three policemen testified that they had been called by neighbors to the apartment house where appellant was found. The police ascertained that the girl's mother was at her place of employment. When the mother returned shortly thereafter, the police accompanied the mother and the girl to a physician who certified to the officers that the girl had had relations with a man within four or five hours of the medical examination. The arresting officers also testified that they had observed lipstick upon the appellant's mouth when they found him in the girl's bedroom, and that members of the crowd which had congregated outside the building had commented about this. Although at the time of the arrest both appellant and the girl denied any improprieties, the girl lator told the physician that she had had intercourse with the appellant in the apartment. There was other testimony by the officers to the effect that a neighbor who had summoned the police had asserted to them that she had seen appellant make improper advances to a ten-year-old child on the street earlier that day.

At the conclusion of the hearing, the Trial Board decided to continue appellant's suspension 'indefinitely or until such time as the pending criminal case is disposed of in the Courts; meanwhile the Trial Board of the Bureau of Fire reserves the right to reconvene at a future date and make final disposition.' What the board in effect did was to hear evidence and make findings. For the time being they postponed their ultimate disposition of the case, perhaps with the thought that the court's disposition of the criminal charges unfavorably to appellant would make their job a perfunctory one.

These findings were subsequently approved by the Mayor of the City of Pittsburgh. On October 21, 1954, the Director of the Department of Public Safety, by letter, informed Zeber of his suspension and, in accordance with the fireman's Civil Service Act, 53 P.S. § 23496, advised him that he had five days within which to make a reply thereto if he so desired. No answer was made. In fact, there was no further communication by appellant to any city agency until July 15, 1957, when he requested reinstatement.

The grand jury in October and November, 1954, indicted Zeber for indecent assault, adultery and contributing to the delinquency of a minor. The trial of these cases was postponed several times by Zeber himself. Ultimately, in December, 1956, a demurrer to the evidence was sustained on the charge of contributing to the delinquency of a minor, appellant was found not guilty in a nonjury trial of the charge of indecent assault, and the jury failed to return a verdict on the charge of adultery. On June 20, 1957, the charge of adultery was nolle prossed at the request of the girl's mother.

On July 15, 1957, appellant, acting through counsel, wrote to the Director of the Department of Public Safety requesting reinstatement. At appellant's request, the hearing before the Trial Board was postponed at least until November. On April 21, 1958, the Trial Board reconvened and recommended Zeber's dismissal. Appellant then appealed to the Civil Service Commission. At a hearing on August 25, 1958, additional testimony was taken, and on October 8, 1958, the Commission dismissed the appeal. This dismissal was affirmed by the County Court in an opinion by Judge Guffey.

Both the Commission and the lower court concluded that appelland had waived his rights by not protesting at any time that the provisions regarding removal and suspension had not been strictly followed. The statute in question, 53 P.S. § 23495, authorizes the Trial Board '* * * to impose fines and pecuniary penalties, to be stopped from pay, or to suspend from pay or duty, or both, for a period fixed by them, not exceeding one year, or to dismiss from the service.' (Emphasis supplied.) While it is clear that when the period of suspension went beyond one year the Act was not being complied with, it is equally clear that appellant acquiesced in this deviation for several years. In point of fact, appellant first raised the question of improper suspension in August, 1958, before the Civil Service Commission.

Although this Court has never had occasion to declare whether a fireman may waive strict compliance with the Civil Service Act, we have little difficulty in finding a waiver in such a clear case as this. Strong considerations of public policy require that an employee of a public body who claims to have been improperly or illegally discharged or suspended must act with utmost diligence in asserting his rights. It can be presumed that when someone is dismissed or suspended from an active position in the public service for an extended period of time, someone else has been chosen to take his place. The work of a fireman must be done and it must be paid for by the city. Unless facts are alleged which constitute a sound excuse for the delay in asserting one's rights, such delay in commencing action to rectify the error is absolutely indefensible and deprives the complainant of any right to object.

The Trial Board, when it first met in September, 1954, expressly did not make a final disposition. This action was obviously to appellant's advantage, for if the Trial Board had been forced to make a final disposition immediately, the probability is strong that upon the evidence received the Board would have...