Gardner v. Repasky

Decision Date23 April 1969
Citation434 Pa. 126,252 A.2d 704
PartiesWhitney J. GARDNER, Appellant, v. John J. REPASKY, Boyd Cloudas and Joseph Bagalini, Acting as Civil Service Commission of Sayre Borough, Sayre Borough Council.
CourtPennsylvania Supreme Court

Robert J. Landy, Sayre, for appellees.

Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN, ROBERTS, and POMEROY, JJ.

OPINION OF THE COURT

COHEN, Justice.

Appellant, a police officer in Sayre Borough, appeals from a two week suspension ordered by Borough Council and affirmed by the Civil Service Commission of the Borough and the Court of Common Pleas of Bradford County. Because of the invalidity of the procedural aspects of this suspension, we reverse that action without reaching the merits as to appellant's behavior.

In October, 1963, the Fire Board and Ambulance Board of the Borough sent letters to the mayor complaining about the cooperation they were receiving from appellant. The Sayre Borough Police Committee decided to further investigate and requested appellant to attend a meeting on December 6, 1963. At that time appellant refused to testify without his attorney who was not permitted to attend the meeting. Another meeting on December 27, 1963 resulted in a recommendation to Borough Council that appellant be suspended. At a meeting on December 30, Council suspended appellant for two weeks and notified him by mail on January 2, 1964. On January 7, appellant took an appeal to the Civil Service Commission. Throughout this period appellant was not furnished with a written specification of charges despite his several requests. More than a year later Council furnished the charges to the Commission and gave a copy to appellant. The Civil Service Commission held hearings on April 26, 1965 and finally on November 15, 1965, but did not file an opinion or render a decision until February 7, 1967. The lower court affirmed the order and an appeal was taken to this Court.

The suspension, removal, or demotion of a policeman or fireman at the time was governed by Section 1184 of the Borough Code, Act of May 4, 1927, P.L. 519, Art. XI, § 1184, added 1947, July 10, P.L. 1621, § 39, 53 P.S. § 46184. 1 That section lists the six exclusive reasons for any of the above actions and requires that '(a) written statement of any charges made against any person so employed shall be furnished to such person within five days after the same are filed.' The next following section provides for a speedy hearing before the Civil Service Commission at which time written answers to the charges can be filed. In light of these and other provisions of the Borough Code which seek to expedite the review of any suspension, we find the procedure used in the instant case invalid.

The proper procedure is to file the charges at the time Council suspends the employee and notify the employee of same within five days. There are at least three reasons for requiring this procedure: (a) that the employee may be informed of what misbehavior he is accused and rectify it if he so chooses, (b) that the employee can determine whether the charges are statutorily sufficient, and (3) that he can decide whether to take an appeal to the Civil Service Commission and, if he does, to file a timely answer. Appellant in this case was forced to take his appeal without a specification of charges, several of which had to be dropped as statutorily deficient. Had Council suspended him without first questioning him, as it may do, he would not have known the charges here until some thirteen months later. This violates the legislative intention to bring these matters to a speedy conclusion.

Furthermore the Commission has adopted, with the approval of Council and in accordance with section 1170 of the Borough Code, rules and regulations for carrying this subdivision of the Borough Code into effect, section 901 of which reads:

'Whenever any police officer in the Borough is suspended, removed or reduced in rank, the specific charges warranting each such action shall be stated in writing by the appointing authority. The charges shall be stated clearly and in sufficient detail to enable the person accused to understand the charges made against him and to answer them. As soon as practicable, the statement of charges shall be filed in duplicate with the Commission, and within five (5) calendar days of such filing, the original copy of the statement of charges shall be delivered to the person accused either by personal service or by certified registered mail.'

This substantiates our position with respect to informing the employee quickly and clearly so that he may take whatever legal action he wishes or rectify his behavior. Council and the...

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25 cases
  • Shah v. State Bd. of Medicine
    • United States
    • Pennsylvania Commonwealth Court
    • May 22, 1991
    ...v. State Dental Council and Examining Board, 70 Pa.Commonwealth Ct. 621, 625, 453 A.2d 751, 753 (1982); See also Gardner v. Repasky, 434 Pa. 126, 129, 252 A.2d 704, 706 (1969); FR & S, Inc. v. Department of Environmental Resources, 113 Pa.Commonwealth Ct. 576, 537 A.2d 957 (1988), aff'd per......
  • Katruska v. Department of Educ.
    • United States
    • Pennsylvania Commonwealth Court
    • March 11, 1999
    ...for bias and the appearance of non-objectivity that are sufficient to create a denial of due process. Lyness; see also Gardner v. Repasky, 434 Pa. 126, 252 A.2d 704 (1969). Although there is no evidence that Board member Bartolomucci had any actual bias against Katruska, the appearance of b......
  • Lyness v. Com., State Bd. of Medicine
    • United States
    • Pennsylvania Supreme Court
    • June 30, 1992
    ...of cases over the past three decades has firmly established such a principle as a matter of Pennsylvania law. In Gardner v. Repasky, 434 Pa. 126, 252 A.2d 704 (1969), this Court invalidated a procedure whereby the same individual was a member of the Fire Board which brought the initial comp......
  • Purcell v. Reading Sch. Dist.
    • United States
    • Pennsylvania Commonwealth Court
    • July 14, 2017
    ...a fatal defect under the Pennsylvania Constitution." Id. at 1210. Finally, the Supreme Court cited its decision in Gardner v. Repasky , 434 Pa. 126, 252 A.2d 704, 706 (1969), when it noted proverbially, "A man cannot sit as judge when he is a member of a board which has brought the accusati......
  • Request a trial to view additional results

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