Oswald v. City of Allentown

• Decision Date: 13 July 1978
• Parties: Donald G. OSWALD, Appellant, v. CITY OF ALLENTOWN and Carson S. Gable, Appellees.
• Court: Pennsylvania Commonwealth Court

Page 1128

388 A.2d 1128

36 Pa.Cmwlth. 238

Donald G. OSWALD, Appellant, v. CITY OF ALLENTOWN and Carson S. Gable, Appellees.

Commonwealth Court of Pennsylvania.

Argued April 7, 1978.

Decided July 13, 1978.

[36 Pa.Cmwlth. 239] W. Hamlin Neely, Allentown, for appellant.

Jack I. Kaufman, Alan M. Black, Daniel K. McCarthy, Allentown, for appellees.

Before CRUMLISH, Jr., MENCER and ROGERS, JJ.

OPINION

CRUMLISH, Jr., Judge.

Donald G. Oswald (Appellant) appeals an order of the common pleas court upholding his dismissal from the Allentown Police Force. The City of Allentown (City) seeks to sustain that determination.

The facts are as follows. In May or June of 1975, Appellant, while in uniform and driving a marked police vehicle, visited the manager of the Twin Village Apartments. According to the testimony adduced before the court below, Appellant stated, "I heard you have been having a lot of problems in the project." When the manager replied in the affirmative, Appellant responded, "Well, if I had an apartment I could keep an eye on the place for you." The manager testified that he had previously made apartments available for surveillance purposes to law enforcement authorities and, so, he made one available to Appellant. From approximately 100 vacant apartments, Appellant selected an unfurnished unit located in a remote area of the complex. Appellant asked the manager to obtain some furnishings and, accordingly, Appellant was provided a bed, kitchen table and chairs. Appellant paid no rent for the apartment nor did the manager see Appellant again until sometime in 1976.

In late April or May of 1976, while patrolling the vicinity of the Twin Village Apartment complex, Appellant told a fellow officer that "I have an apartment, and we are using it." Appellant also indicated to this officer that a woman civilian was regularly taking men to the apartment. One married officer testified that Appellant had given him a key to the apartment, which he subsequently used for sexual encounters. The Chief of the Allentown Police Department testified that a married female admitted using the apartment twice a week for the purpose of engaging in sexual relations. Subsequently, when this woman testified, she admitted receiving a key from Appellant. Appellant, however, did not testify.

Prior to disposition by that court, the Allentown City Council, after a closed hearing, the transcript of which was not made available to the court below, concluded:

"1. Patrolman Donald Oswald did not engage in conduct unbecoming a police officer in that he did not knowingly and willfully procure an apartment unit for personal use, without payment, under the false pretext that the apartment unit was to be used for observation of possible illegal activities within the apartment complex.

"2. Patrolman Donald Oswald did engage in conduct unbecoming a police officer in that he did provide access to, and use of, an apartment unit to others for activities which could only bring discredit to the Allentown Police Bureau." (Emphasis added.)

Relying on the second conclusion, Appellant was permanently dismissed. He appealed that determination to the court below which, finding both charges substantiated by the evidence, affirmed the dismissal by the Allentown City Council, and sustained Appellant's dismissal. ¹ Appellant seeks our review of that order. We affirm.

Our Supreme Court in Baker Case, 409 Pa. 143, 185 A.2d 521 (1962) ², clearly set forth the doctrine that a municipality's determination to impose certain sanctions, including dismissal, against police officers involves three separate questions: (1) a factual question raised by the charges against the officer; (2) the legal question of whether such facts constituted just cause for his dismissal; and (3) the judgment question whether the power of dismissal, if authorized, should be exercised under the circumstances. As to this third question, the Court noted that a reviewing court does not have absolute discretion to exercise in adjudging the merit and validity of the sanctions. The court is required to give due respect and weight to the action of the duly constituted municipal body authorized to act with respect to the charges which, in this instance, is the City Council of Allentown. The Court in Baker, supra, delineated this rationale as follows:

"(P)rimary responsibility and decision as to the methods necessary to uphold police morale and efficiency and to maintain public confidence in the police department resides in the municipal officials. . . . The function of the courts is merely to make sure that just cause for dismissal exists, both factually and legally, and that the municipal officials have not abused their discretion in imposing the punishment in question. It is not our function to decide what we would have done under the circumstances if we had been Baker's superiors." 409 Pa. at 147, 185 A.2d at 523. (Citations omitted.) (Emphasis in original.)

Clearly, if the second charge has factual support in the record and these facts are sufficient as a matter of law to constitute just cause for dismissal, we are obliged to uphold Appellant's dismissal because we must recognize that primary responsibility for disciplinary action resides with municipal officials, absent a clear abuse of discretion. This is so even though we might have imposed a different sanction. We turn, therefore, to Appellant's contention that competent evidence does not support the second charge.

Based upon the testimony of those witnesses testifying before the court below and the inescapable inferences derived therefrom, we agree with that court that the findings of City Council relating to the allegation of conduct...