Johnson v. Lansdale Borough
| Decision Date | 28 September 2016 |
| Docket Number | No. 62 MAP 2015,62 MAP 2015 |
| Citation | 146 A.3d 696 |
| Parties | George Johnson, Appellee v. Lansdale Borough and Lansdale Borough Civil Service Commission, Appellants |
| Court | Pennsylvania Supreme Court |
Scott Edward Blissman, Esq., Ryan J. Cassidy, Esq., Eckert Seamans Cherin & Mellott, LLC, Casey Alan Coyle, Esq., for Appellants.
Blake E. Dunbar Jr., Esq., Robert L. Brant & Associates, LLC, for Appellee.
OPINION
We granted allowance of appeal to determine whether a trial court's standard of review of an adjudication of a municipal civil service commission where no new evidence is presented on appeal is governed by the Borough Code, which has been interpreted as providing for de novo review, or by the Local Agency Law, which provides for a limited appellate review under those circumstances. For the reasons set forth herein, we hold that when the two statutes are read in pari materia , it becomes clear that a limited appellate standard of review applies. Accordingly, we respectfully reverse the order of the Commonwealth Court, which held that de novo review was appropriate, and remand the matter for further proceedings consistent with this opinion.
The record establishes that Lansdale Borough Police Officer George Johnson received a subpoena to attend a preliminary hearing on May 18, 2010. His attendance at the hearing was critical as he had conducted the field sobriety tests relating to a criminal defendant's charges of driving under the influence of alcohol. Without requesting a continuance or notifying anyone of his inability to attend, Officer Johnson failed to appear at the preliminary hearing, resulting in the dismissal of the criminal charges.
On May 26, 2010, Lansdale Borough Police Chief Robert McDyre met with Officer Johnson to determine why he missed the preliminary hearing. Notably, the meeting was not recorded, and no written statement was made confirming what was said. Present during the inquiry were Sergeant Richard Bubnis and Sergeant Alex Kromdyk. Chief McDyre began by providing the customary written warning, advising Officer Johnson that he was being questioned as a part of an official investigation and that he must answer the questions posed honestly and completely or be subject to disciplinary action. When Chief McDyre asked why he failed to appear at the preliminary hearing, Officer Johnson responded that he had forgotten about the hearing as he had been distracted because his son had been bitten by the neighbor's pitbull on May 13, 2010, five days before the preliminary hearing. Based on his response, Chief McDyre discussed methods to avoid missing hearings in the future. Chief McDyre then questioned Officer Johnson regarding whether he had received prior notice of the May 18th preliminary hearing, to which he responded that he did receive such notice, but mistakenly believed that the hearing was later in the month of May.
As the meeting continued, Chief McDyre asked Officer Johnson whether he could reinstate the criminal charges where he simply forgot to appear for the preliminary hearing.1 Officer Johnson replied that he was attempting to reinstate the criminal charges by informing both the district court and the assistant district attorney that he had missed the preliminary hearing, not because he forgot that it was scheduled, but rather because he was sick. Specifically, he asserted that he apologized personally to the district court for missing the preliminary hearing and informed the court that he failed to appear because he was sick. Additionally, Officer Johnson provided to Chief McDyre a letter that he had drafted to the assistant district attorney, which had not yet been sent, seeking re-arrest of the criminal defendant and again asserting that he had missed the May 18th preliminary hearing because he “was home sick.”2 Officer Johnson elaborated that he had called off sick on the day prior to the scheduled preliminary hearing due to a sinus infection and that he remained sick on the day of the hearing. Notably, he acknowledged that he was well enough to attend the hearing, had he remembered it.
The tenor of the meeting at that point changed as Chief McDyre viewed Officer Johnson's explanations to the court and the assistant district attorney as being inconsistent with his initial response that he failed to appear at the preliminary hearing because he forgot that it was scheduled. Officer Johnson then asserted that the reasons he had forgotten about the hearing were twofold, i.e. , that he had been sick and that he had been distracted by his son's recent injury. Concluding that Officer Johnson was being dishonest in his responses, Chief McDyre placed him on administrative leave.
Following a Loudermill hearing on June 10, 2010, Chief McDyre recommended that the Borough terminate Officer Johnson's employment.3 Accordingly, the Borough subsequently issued a statement of charges, alleging that Officer Johnson: (1) failed to appear at the May 18, 2010 preliminary hearing, resulting in the dismissal of the criminal charges, thereby constituting his fourth failure to appear in court when subpoenaed to do so; (2) was untruthful during the May 26, 2010 questioning about why he failed to appear at the preliminary hearing after he had been ordered to answer honestly and completely; (3) made a false statement to the court regarding why he failed to appear at the preliminary hearing; and (4) prepared a document to the assistant district attorney in which he stated a false reason for missing the preliminary hearing and sought permission to re-arrest based on the same false grounds, all in violation of Borough police regulations and Borough ordinances. The Borough Council subsequently voted to terminate Officer Johnson's employment.
Officer Johnson thereafter appealed to the Borough Civil Service Commission (“Commission”), which held hearings on the matter on July 19, 2010, July 26, 2010, and August 17, 2010. In addition to establishing that Officer Johnson failed to appear at the May 18th preliminary hearing and had a disciplinary history of three similar infractions, conflicting testimony was presented regarding what transpired during Chief McDyre's May 26, 2010 inquiry. As described supra, Chief McDyre testified that Officer Johnson lied to him during the formal investigation after he was given a direct order to be honest and truthful. Specifically, he asserted, Officer Johnson responded that he missed the preliminary hearing because he forgot about it due to his son's recent dog bite injury, but when asked whether he could re-arrest the criminal defendant under such circumstances, Officer Johnson then asserted that he missed the hearing because he was sick with a sinus infection. Chief McDyre further testified that Officer Johnson repeated his false statement to the court and in a letter drafted to the assistant district attorney. He explained that there were steps that Officer Johnson could have taken if he was sick on the day of the preliminary hearing, including notifying the police department or the judge. When asked on cross-examination whether Officer Johnson could have had more than one reason for failing to appear at the preliminary hearing, Chief McDyre clarified his belief that the officer's sickness was not a second reason for failing to appear but, rather, constituted a different version of the facts that Officer Johnson offered during the questioning when he was confronted with inconsistencies in his account of the events. Finally, Chief McDyre indicated that he would not have recommended termination had it not been for Officer Johnson's untruthfulness. Sergeant Bubnis and Sergeant Kromdyk also testified before the Commission, largely corroborating Chief McDyre's testimony.
To the contrary, Officer Johnson testified that he never lied to Chief McDyre but, rather, explained at the May 26th meeting that he had forgotten to attend the preliminary hearing because he was both sick and distracted due to his son's recent dog bite and resulting injuries. He explained that he did not inform the court or the prosecutor of his son's injuries as he felt that was his personal business. Officer Johnson reiterated that his sickness did not physically prevent him from attending the May 18th preliminary hearing, that he would have attended the hearing had he remembered, and that his illness was a contributing factor in why he forgot. Officer Johnson further presented the testimony of his physician, establishing that he suffers from chronic sinusitis, that he had been treated for the same on May 24, 2010, and that he could have been suffering from such malady on May 18, 2010, the date of the missed preliminary hearing.
Finally, Officer Justin DiBonaventura, a patrol officer with the Lansdale Police Department, testified that a recorded statement should have been made of the May 26, 2010 meeting between Chief McDyre and Officer Johnson to ensure accuracy regarding what was said. Officer DiBonaventura explained that if he were interviewing a police officer as part of an internal investigation, he would have taken notes during the interview and prepared a formal question and answer statement, which he would have presented to the officer for him to read and sign.
Following the hearing, the parties filed with the Commission proposed findings of fact and conclusions of law with supporting legal memoranda. Upon review of such filings, the Commission denied Officer Johnson's appeal and concluded there was sufficient evidence for three of the four charges, which evidence supported the Borough's decision to terminate his employment. Specifically, the Commission sustained the Borough's first charge, relating to the failure to appear at the May 18th preliminary hearing, as this charge was undisputed.
As to the second charge, alleging that Officer Johnson failed to respond fully and honestly during the May 26, 2010 internal investigation into...
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