Soja v. Pennsylvania State Police

• Decision Date: 05 June 1979
• Citation: 402 A.2d 281,43 Pa.Cmwlth. 226
• Parties: Ronald E. SOJA, Petitioner, v. PENNSYLVANIA STATE POLICE, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 281

402 A.2d 281

43 Pa.Cmwlth. 226

Ronald E. SOJA, Petitioner, v. PENNSYLVANIA STATE POLICE, Respondent.

Commonwealth Court of Pennsylvania.

Argued Feb. 7, 1979.

Decided June 5, 1979.

Gary Lightman, Mancke & Lightman, Harrisburg, for petitioner.

J. Andrew Smyser, Deputy Atty. Gen., Dept. of Justice, Howard Berringer, Dept. of Transp., Harrisburg, for respondent.

Before BOWMAN, President Judge, and CRUMLISH, Jr., MENCER, BLATT, DiSALLE, CRAIG and MacPHAIL, JJ.

OPINION

DiSALLE, Judge.

On September 22, 1977, the Commissioner of the Pennsylvania State Police (Commissioner) ordered that Ronald E. Soja (Soja) be dismissed from his position as state police trooper, effective September 28, 1977. The Commissioner's decision was the culmination of an extensive departmental disciplinary process.

After charges had been brought against Soja by his commanding officer, the Eastern Regional Disciplinary Board of the State Police (Disciplinary Board) convened on May 23, 1977. A hearing was held and the Disciplinary Board found Soja guilty of two second level offenses, approved third level action as to the remaining charges, and recommended that a Court-Martial Board be assembled. He was suspended from his position without pay, pending disposition of the charges by the Court-Martial Board. Shortly thereafter, Soja appealed to this Court, challenging the Disciplinary Board's action and requesting that the court-martial proceedings be enjoined. A hearing was conducted and Judge Wilkinson, treating the matter as a request for temporary relief, denied Soja's petition for stay on June 24, 1977. The Disciplinary Board met again on July 12, 1977, to consider additional charges. It recommended that Soja's suspension continue and that the additional charges also be reviewed by the Court-Martial Board. On August 23, 1977, the Court-Martial Board was convened and testimony was received. After two days of hearings, the Court-Martial Board found Soja guilty of some charges, innocent of others, and recommended to the Commissioner that he be dismissed from the State Police. As noted previously, the Commissioner accepted this recommendation and discharged Soja on September 22, 1977.

Soja alleges that various errors were committed at each level of the proceedings. We will address each seriatim.

Soja's first, and most strongly argued, contention concerns the alleged inability of his attorney to fully participate in the hearing before the Disciplinary Board. Likening that hearing to a preliminary hearing in a criminal proceeding, Soja characterizes it as a "critical stage" in the disciplinary process and claims, therefore, that his due process rights were violated when he was denied effective assistance of counsel. The fatal flaw in his argument is that there is nothing in the record to support Soja's claim that the Disciplinary Board prohibited his attorney from actively participating.

The facts, as seen from the transcript of the hearing held on May 23, 1977, are as follows. Soja's attorney, Mr. Lightman, objected at the outset of the proceedings to a department regulation which would have prohibited Soja from having a non-participating observer present in addition to his counsel. ¹ When the Disciplinary Board refused to rule in his favor on the motion, Mr. Lightman responded that "there is no need for us to participate any further." He thereupon left the room and the hearing continued without him. Thus, it is manifestly apparent that the right to have his attorney interrogate or cross-examine witnesses, or otherwise fully participate in proceedings, was never requested by Soja, and consequently never denied him. Since a party may not pursue on appeal any question not raised before the agency, we are precluded from reaching the merits of this argument. 2 Pa.C.S. § 703; See also Pa.R.A.P. 302(a).

With regard to the court-martial proceedings, Soja alleges that the Board's decision is not in accordance with the weight of the evidence. Our scope of review is limited to a determination of whether the findings of Soja's guilt are supported by substantial evidence. Graci v. Pennsylvania State Police, 14 Pa.Cmwlth. 630, 324 A.2d 887 (1974); Luchansky v. Barger, 14 Pa.Cmwlth. 26, 321 A.2d 376 (1974). We have carefully reviewed the entire record, giving special consideration to those charges discussed in Soja's brief, and are satisfied that there is indeed substantial evidence to support the Court-Martial Board's conclusions of guilt.

Soja's next contention concerns the receipt by the Commissioner of copies of all investigative reports. It is suggested that this procedure contravenes the requirements of Dussia v. Barger, 466...