Dussia v. Barger

• Decision Date: 03 October 1975
• Citation: 466 Pa. 152,351 A.2d 667
• Parties: Lieutenant Colonel Joseph DUSSIA, Appellant, v. Colonel James D. BARGER, Commissioner of the Pennsylvania State Police, et al., Appellees.
• Court: Pennsylvania Supreme Court

Page 667

351 A.2d 667

466 Pa. 152

Lieutenant Colonel Joseph DUSSIA, Appellant, v. Colonel James D. BARGER, Commissioner of the Pennsylvania State Police, et al., Appellees.

Supreme Court of Pennsylvania.

Oct. 3, 1975.

Rehearing Denied Feb. 26, 1976.

Bruce E. Cooper, Cooper, Friedman & Butler, Harrisburg, for appellant.

J. Andrew Smyser, Deputy Atty. Gen., Benjamin Lerner, Deputy Atty. Gen., Israel Packel, Atty. Gen., Pennsylvania Dept. of Justice, Harrisburg, for appellees.

Arlen Specter, Philadelphia, for National Fraternal Order of Police (Grand Lodge), amicus curiae.

Richard M. Goldberg, Hourigan, Kluger & Spohrer Associates, Wilkes-Barre, for amicus curiae.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION

NIX, Justice.

Appellant, Joseph Dussia, a Lieutenant Colonel of the Pennsylvania State Police presently under suspension, instituted an action in equity in the Commonwealth Court seeking permanent injunctive relief from his pending court-martial. The action was instituted against James D. Barger, the Commissioner of the Pennsylvania State Police Department, and the individual members of the Court-Martial Board. The court-martial proceeding had been instituted by the Commissioner for the purpose of considering certain improprieties allegedly committed by Dussia in the performance of his duties. In the event the charges are established the Board would have the option to recommend to the Commissioner that Dussia be discharged or demoted in rank. In the event of his exoneration the Board would be empowered to recommend reinstatement with back pay. The Commonwealth Court sitting en banc denied appellant's request for injunctive relief and this appeal followed.

A number of assignments of error have been raised and will be treated ad seriatim. Appellant first asserts that his constitutional right to a fair hearing will be denied if the court-martial proceedings are permitted to continue because of the Commissioner's bias against him. The testimony pertaining to this point focused upon the content of a telephone conversation between the Commissioner and appellant. Although appellant's version of the conversation would tend to indicate that the Commissioner was biased against him, the Commonwealth Court found the Commissioner's representations to the contrary more credible. The court below concluded that Barger's statements were 'only an effort to apprise the appellant that there was evidence against him and to suggest that resignation should be considered.' They found that the record failed to establish that Barger had, in fact, formed an opinion as to appellant's guilt or innocence and, therefore, could objectively perform his function. While the record presents a close question as to whose version is correct we believe the findings of fact made by the Commonwealth Court are supported by adequate evidence and, thus, will not be disturbed on appeal. ¹ Snow v. Corsica Construction Company, 459 Pa. 528, 329 A.2d 887 (1974); Berkowitz v. Mayflower, 455 Pa. 531, 317 A.2d 584 (1974); Anthony v. Perose, 455 Pa. 233, 312 A.2d 360 (1973); Yuhas v. Schmidt, 434 Pa. 447, 258 A.2d 616 (1969); Hankin v. Goodman, 432 Pa. 98, 246 A.2d 658 (1968).

Appellant next asserts that Section 711 ² of the Administrative Code is an unconstitutional delegation of power by the legislature because it fails to provide any legislative standards to guide the Commissioner in the performance of the duties provided for therein. We do not agree.

In Ruch v. Wilhelm, 352 Pa. 586, 43 A.2d 894 (1945) this Court was called upon to consider an earlier version of Section 711 of the Administrative Code, Act of April 9, 1929, P.L. 177, as amended, Act of June 29, 1937, P.L. 2436. That section provided that the Commissioner establish rules and regulations for the filing and hearing of charges against members of the state Police. ³ There we noted the existence of the power of the Commissioner under common law to remove any employee within the department at his pleasure either for cause or without cause.

'Under the common law, therefore, they are subject, like all other Commonwealth employes, to removal at the pleasure of the appointing power, either for cause or without cause, unless there is legislative provision to the contrary.' Id. at 588--89, 43 A.2d at 895. (Footnote omitted)

We held that the language of 711 would not be considered as a legislative attempt to confer tenure upon state police employees and that the Commissioner had an option to either exercise his common law right or to employ the procedures set forth in the regulations promulgated pursuant to 711. This decision is significant in our present inquiry in that it establishes that at the time of the most recent amendment of 711 the Commissioner still possessed his unfettered power to discharge at his pleasure. ⁴ It is therefore apparent that the subsequent amendment, rather than being an unlawful delegation as charged, is in fact, a restriction by the legislature of a previously absolute common law power.

In the current version of 711 the legislature has established standards for the Commissioner. In this context he was required to make rules and regulations to govern the conduct of all personnel, supply any member who is accused of violating those proscriptions with a detailed written statement of the charges against him, and to appoint a court-martial board consisting of three commissioned officers. As we explained in Chartiers Valley Joint Schools v. Allegheny County Board of School Directors, 418 Pa. 520, 211 A.2d 487 (1965), it is generally agreed that the nondelegation principle does not require that all details of administration be precisely or separately enumerated in the statute. The legislature can delegate power when it establishes general standards according to which that power must be exercised. Chartiers Valley Jt. Schs. v. Allegheny Co. Bd. of School Directors, supra; Pennsylvania Water & Power Resources Board v. Green Spring Co., 394 Pa. 1, 145 A.2d 178 (1958); Belovsky v. Redevelopment Authority, 357 Pa. 329, 54 A.2d 277 (1947).

More importantly, the doctrine of legislative delegation sought to be invoked by appellant is here inapplicable because this section did not represent a grant of power by the legislature but rather a limitation upon the Commissioner's common law power. ⁵

Finally, we turn to appellant's last contention that Section 711 of the Administrative Code as implemented by State Police Field Regulation 3.03--E creates an unconstitutional commingling of functions in the Commissioner. We agree.

Under 711 of Administrative Code, supra, the Commissioner is vested with the obligation to determine the guilt or innocence of the accused employee and to determine the sanction to be imposed. The recommendations of the board are only that. The ultimate judicial determination as to guilt or innocence is exclusively within the discretion of the Commissioner. Even accepting the view of the Commonwealth Court that the Commissioner is bound by the record of the court-martial board, he is still the ultimate arbiter in each case.

In addition to this judicial function State Police Field Regulation 3.03--E vests the Commissioner with the responsibility of determining when a disciplinary board is to be convened. State Police Field Regulation 3.03--E provides in pertinent part:

'1. A Disciplinary Board comprised of three Area Commanders shall be appointed by the Commissioner to review recommendations for Court-Martial. The senior officer shall act as chairman.

'2. The Board shall convene at the direction of the Commissioner and shall be responsible to him for conducting an objective review of all cases that he may refer to it.

'3. No Area Commander shall sit as a member of a Board reviewing the case of an individual serving under his Area Command.

'4. The Board shall function in an advisory capacity only.

'5. The Board shall prepare a report for the Commissioner which presents a summary of the essential facts and recommended action to be taken.

'6. When an unanimous decision cannot be reached, separate reports shall be prepared.' (Emphasis supplied.)

Although the disciplinary board reviews the facts to determine whether or not they justify the initiation of court-martial proceedings, here again, their decision is only advisory and the Commissioner must make the ultimate decision as to whether a court-martial board should be appointed. The convocation of the disciplinary board pursuant to paragraph 2 of Regulation 3.03--E or the initiation of criminal proceedings is a classic prosecutorial function. The American Bar Associations Standards For Criminal Justice: The Prosecution and the Defense Function provide:

3.4 Decision to charge.

(a) The decision to institute criminal proceedings should be initially and primarily the responsibility of the prosecutor.

(b) The prosecutor should establish standards and procedures for evaluating complaints to determine whether criminal proceedings should be instituted.

(c) Where the law permits a citizen to complain directly to a judicial officer or the grand jury, the citizen complainant should be required to present his complaint for prior approval to the prosecutor and the prosecutor's action or recommendation thereon should be communicated to the judicial officer or grand jury.

ABA Standards For Criminal Justice: The Prosecution and the Defense Function, 3.4, approved draft (1971). Thus, as appellant contends, § 711 and Regulation 3.03--E create an unconstitutional commingling of judicial and prosecutorial functions in the Commissioner.

In Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616 (1950) the Court considered the question of whether administrative hearings in deportation proceedings had to conform with the requirements of the Administrative Procedure Act of June 11, 1946, 60 Stat. 237, 5 U.S.C. § 1001 et seq. In the deportation proceedings before ...