Johnson v. Lansdale Borough
| Decision Date | 19 November 2014 |
| Docket Number | No. 134 C.D. 2013,134 C.D. 2013 |
| Citation | 105 A.3d 807 |
| Court | Pennsylvania Commonwealth Court |
| Parties | George JOHNSON v. LANSDALE BOROUGH and Lansdale Borough Civil Service Commission, Appellants. |
Scott E. Blissman, Philadelphia, for appellants.
Blake E. Dunbar, Jr., Trappe, for appellee.
BEFORE: DAN PELLEGRINI, President Judge, and BERNARD L. McGINLEY, Judge, and RENÉE COHN JUBELIRER, Judge, and ROBERT SIMPSON, Judge, and MARY HANNAH LEAVITT, Judge, and PATRICIA A. McCULLOUGH, Judge, and ANNE E. COVEY, Judge.
Lansdale Borough and the Lansdale Borough Civil Service Commission (collectively, Borough) appeal an order of the Court of Common Pleas of Montgomery County (trial court) that modified the Commission's discipline of George Johnson, a Borough police officer. Specifically, the trial court reversed the Borough's termination of Johnson's employment and ordered that he be reinstated after a 30–day suspension. In doing so, the trial court held, inter alia, the Commission's factual finding that Johnson made a false statement to a district justice and to a district attorney was not supported by substantial evidence. The trial court also held that Johnson's conduct warranted a suspension, not a termination and, thus, modified the Commission's discipline. Concluding that the trial court did not err or abuse its discretion in modifying the Borough's discipline, we affirm.
Johnson, a Borough police officer since 1997, did not appear at a preliminary hearing on May 18, 2010, before the district justice in a DUI case in which Johnson had been the arresting officer. Because Johnson was not scheduled to work the day of the hearing, the police department could not give the prosecutor information that might have allowed the district justice to reschedule the preliminary hearing. In the absence of evidence, the district justice dismissed the DUI charges against the defendant.
A criminal complaint dismissed at a preliminary hearing may be reinstituted so long as the statute of limitations has not run. Commonwealth v. Thorpe, 549 Pa. 343, 701 A.2d 488, 489 (1997). However, the decision to reinstitute charges must be made by the prosecutor. PA. R.CRIM.P. 544, comment.1 When Johnson returned to work on May 19, 2010, he realized he had missed the preliminary hearing and began the process necessary to have the DUI charges reinstated.
On May 26, 2010, the Borough Chief of Police, Robert McDyre, called Johnson into his office to discuss his absence from the preliminary hearing. Sergeant Richard Bubnis and Sergeant Alex Kromdyk were also present for the interview, which lasted approximately 15 minutes. The interview was not recorded, and there is some disagreement about what was said there.
Johnson stated that he forgot about the preliminary hearing scheduled on a day when he was off work. Chief McDyre asked Johnson if he would try to reinstate the charges and whether reinstatement was even possible where the officer has forgotten. Johnson stated that he had seen the district justice and told him that he had been sick on the day of the hearing and, in addition, he had begun drafting a letter to the district attorney in an effort to get the charges reinstated. McDyre requested a copy of the draft letter, which Johnson retrieved from his computer; it stated as follows:
I did not attend the Preliminary Hearing because he [sic] was home sick. My department was unaware of this because I was on a scheduled day off and I did not notify them [sic] of my illness until I returned to work. [The district justice] was not notified by me of the situation until several days later and he had already dismissed the case.
McDyre read the letter and stated that it was a lie, in view of Johnson's statement earlier in the meeting that he had forgotten about the hearing. Johnson replied that he was, in fact, sick and in bed for most of that day. Johnson stated that, in spite of his illness, he would have attended the hearing had he remembered it. Concluding that Johnson had been untruthful to the district justice and in his draft letter to the district attorney, McDyre placed Johnson on administrative leave.
On June 10, 2010, the Borough conducted a Loudermill hearing.2 In attendance were the Borough mayor, Sergeant Bubnis, Sergeant Kromdyk, as well as Johnson and his union representative, Officer Justin DiBonaventura. The purpose of the hearing, which lasted approximately five minutes, was to give Johnson an opportunity to explain why he should not be fired. Johnson stated that on May 17, 2010, he “called in sick” and did not work because of a sinus migraine headache. R.R. 267a. The next day, which was the day of the preliminary hearing on the DUI case, Johnson was not scheduled to work.3 Johnson left home to do an errand in the morning, but began to feel ill. He returned home, took medicine and went to bed. Concluding that Johnson had lied about his reasons for not appearing at the hearing, Chief McDyre recommended that Johnson's employment be terminated.
On June 18, 2010, the Borough issued the following statement of charges to Johnson:
R.R. 635a–36a. On June 23, 2010, the Borough Council voted to terminate Johnson's employment. Johnson appealed this determination to the Commission, which conducted hearings over the course of four days.
Chief McDyre testified that, based upon his interview of Johnson at the May 26, 2010, meeting and Johnson's statements at the Loudermill hearing, he believed Johnson should be discharged.
Sergeant Bubnis, who was Johnson's supervisor, testified that when he learned that Johnson had failed to appear at the May 18, 2010, preliminary hearing, he reported that fact to Chief McDyre, who called the meeting on May 26, 2010. Bubnis testified that at this meeting, Johnson apologized for missing the preliminary hearing, which he had forgotten. Johnson further stated that he had apologized to the district justice, explaining that he had been sick that day. Bubnis stated that when Johnson was challenged by Chief McDyre about changing the explanation from forgetfulness to illness, Johnson stated that “one of the reasons he forg[o]t was because he was sick.” R.R. 203a. Sergeant Alex Kromdyk also testified that Johnson stated at the May 26, 2010, meeting that he forgot about the hearing.
Johnson testified on his own behalf. He explained that on May 13, 2010, his seven-year-old son was attacked by his neighbor's pit bull and suffered significant injuries to his right thigh and left arm. On May 14th and 15th he worked his scheduled shifts. On May 16th he was not scheduled to work. On Monday, May 17th he awoke with a migraine headache, called in sick, took medicine and slept most of the day. Johnson testified that he has a long history of sinus problems, which often cause migraine headaches. Johnson's sinus problems have also caused bronchitis and pneumonia in the past.
Johnson testified that on May 18, 2010, the day of the preliminary hearing, he “woke up sore from the migraine headache.” R.R. 269a. He went to the municipal building to vote in the primary and to follow up on the police report that he had filed about his son's dog bite. By noon, feeling worse, he went home, took medication prescribed for his sinus infection and went to bed. He did not realize that he had missed the preliminary hearing until he went to work the next day. He told Sergeant Bubnis that he missed the hearing because he had been sick and also that he had been “very upset by the issue of what happened to [his] son with [the] dog.” R.R. 272a.
As to the May 26, 2010, meeting, Johnson's recollection was that he told McDyre that he forgot the preliminary hearing for two reasons, i.e., his son's injury and his illness. Johnson recalled McDyre's insistence that Johnson had not been sick at all but had just forgotten about the hearing. When McDyre threatened to fire Johnson if he lied again, Johnson reiterated that he had not lied. Rather, he explained that his illness combined with his apprehension over his son's injury caused him to forget...
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Johnson v. Lansdale Borough
...Court thereafter affirmed the trial court's modification of Officer Johnson's termination in an en banc decision. Johnson v. Lansdale Borough, 105 A.3d 807 (Pa. Cmwlth. 2014). In determining the trial court's standard of review in an appeal from an adjudication of a borough civil service co......
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Johnson v. Lansdale Borough
...In doing so, we held that a trial court's review of a municipal civil service commission's disciplinary order is de novo . Johnson v. Lansdale Borough , 105 A.3d 807 (Pa. Cmwlth. 2014).6 Specifically, we held that the trial court's "rejection of the Commission's conclusion on Charges 3 and ......