Gallagher v. Civil Service Commission of City of Philadelphia
| Decision Date | 23 December 1974 |
| Citation | 16 Pa.Cmwlth. 279,330 A.2d 287 |
| Parties | Frank GALLAGHER, Appellant, v. CIVIL SERVICE COMMISSION OF the CITY OF PHILADELPHIA, Appellee. |
| Court | Pennsylvania Commonwealth Court |
Argued Oct. 10, 1974.
Joffrey B. Conn, Philadelphia, for appellant.
James M. Penny, Jr., Nicholas Panarella, Jr., Asst. City Sols. John Mattioni, Deputy City Sol., Martin Weinberg, City Sol Philadelphia, for appellee.
Before CRUMLISH, Jr., KRAMER and WILKINSON JJ.
The Court of Common Pleas of Philadelphia County affirmed a decision of the Civil Service Commission (Commission) of the City of Philadelphia (City) which restored Frank Gallagher (Appellant) to the Police Department (Department). Appellant was appointed to the Department in October of 1965. On December 8, 1970, he was arrested on one count of conspiracy and several counts of falsification stemming from charges of an alleged conspiracy to procure by illegal means driver's licenses. He was tried and acquitted. Thereafter, the Police Inquiry Board conducted a hearing on the same subject, suspended without pay and ultimately dismissed Appellant from the Department. The Commission on appeal by Gallagher convened a de novo hearing. In its adjudication, the Commission held, Inter alia, that the evidence adduced raised an 'inference' of conduct unbecoming an officer but that it warranted only a long suspension rather than outright dismissal. He was ordered restored to duty without back pay.
Our scope of review, as well as that of the court below, is defined by Section 8(b) of The Local Agency Law, Act of December 2, 1968, P.L. 1133, as amended, 53 P.S. § 11308(b) which states in part: 'After hearing, the court shall affirm the adjudication unless it shall find that the same is in violation of the constitutional rights of the appellant, or is not in accordance with law, or that the provisions of this act have been violated in the proceeding before the agency, or that any finding of fact made by the local agency and necessary to support its adjudication is not supported by substantial evidence.' See Harrington v. Philadelphia Civil Service Commission, 4 Pa.Cmwlth. 580, 287 A.2d 912 (1972). In the instant appeal, the decisive issue for our determination is not whether Appellant is subject to criminal or civil liability, but rather, whether there was substantial evidence to justify his reinstatement 'without back pay'.
A careful reading of the record discloses the following evidence to be that relied upon in support of the Commission's adjudication and affirmance by the court below.
'Q. The second time you met Mr. Gallagher at your home did you discuss a driver's license for yourself?
A. I did. I just asked him if I could get my license.
Q. What'd he say?
A. Don't worry about it.
Q. Had you taken a driver's license test before meeting Frank Gallagher?
A. No, no test at all.
Q. You subsequently got an application for a learner's permit in the mail after that, didn't you?
A. Yes, I did.
Q. Which you signed.
A. I signed.
Q. After that, Mr. DiMambro, did you ever take a visual or driving test at the Belmont Barracks or any State Police Barracks for a driver's license?
A. No.
Q. Did you subsequently get a driver's license in the mail?
A. Yes, I did.
Q. Did you give any money or anything to Mr. Gallagher for anything he did for you?
A. No, I didn't.
Q. Most he did for you was to supply that form.
A. Yes.' (Emphasis added.)
It was entirely the prerogative of the Commission to determine the credibility of witnesses and the value of their testimony. Mettee v. Civil Service Commission, 6 Pa.Cmwlth. 82 85, 293 A.2d 147, 149 (1972). However, the court will examine, but not weigh, the evidence, since the fact-finding tribunal is in a better position than the court to pass upon elements of fact dependent upon oral testimony, and the court may not substitute its judgment for that of the agency. Gibbs v. Civil Service Commission, 3 Pa.Cmwlth. 230, 281 A.2d 170 (1971).
This appeal has as its cornerstone the contention that the evidence which has been set forth is not sufficient to meet the substantial evidence standard. We agree. Notwithstanding the absolution of...
To continue reading
Request your trial