Johnson v. Lansdale Borough ( 2014 )

DISSENTING OPINION BY

Judge COVEY.

I respectfully dissent from the Majority’s decision affirming the trial court’s modification of the Lansdale Borough Civil Service Commission’s (Commission) termination of George Johnson’s (Johnson) employment. The Majority’s ruling is based upon its recognition that the scope of the trial court’s review of a borough civil service commission’s determination is “as [the trial court] deems proper,” which “gives a trial court broad authority to revisit the discipline imposed by a township civil service commission.” Majority Op. at 815 (emphasis added). I agree that the discipline can be revisited so long as the trial court, which does not take any new evidence, does not ignore the Commission’s findings of fact that are based on substantial evidence. However, in the instant action, the trial court did not just revisit the penalty. Instead, without taking any additional evidence, the trial court disregarded the Commission’s factual findings as to whether the underlying conduct occurred, concluded that the Commission had improperly sustained two of the charges and then, based upon its conclusion that only one charge had been proven, modified the Commission’s penalty. The trial court’s decision is contrary to a wealth of case law, and thus, I would reverse its decision.

Recently, in Keslosky v. Old Forge [Borough] Civil Service Commission, 73 A.3d 665 (Pa.Cmwlth.2013), allocator den., — Pa. -, 89 A.3d 1286 (2014), this Court affirmed the trial court’s decision to uphold a borough police officer’s suspension. The Court restated the well-established rule:

This Court’s review of the actions of a municipal civil service commission is limited. Where a full and complete record is made of the proceedings before a municipal civil service commission, a reviewing court must affirm the adjudication unless it violates constitutional rights, is not in accordance with the law, or the findings of fact are not supported by substantial evidence. Section 754(b) of the Local Agency Law, 2 Pa.C.S. § 754(b); McAndrew v. Municipal Civil [Serv. Comm’n] of Scranton, 952 A.2d 1219, 1222 n. 7 (Pa.Cmwlth.2008). When a lower court admits additional testimony in an appeal from a civil service commission adjudication, our review is to determine whether the trial court abused its discretion or committed an error of law. Gresock v. City of Pittsburgh Civil [Serv. Comm’n], 698 A.2d 168, 165 n. 1 (Pa.Cmwlth.1997). An abuse of discretion occurs when findings are not supported by substantial evidence in the record. Coal Gas Recovery, L.P. v. Franklin [Turp.] Zoning Hearing [Bd.], 944 A.2d 882, 838 n. 9 (Pa.Cmwlth.2008).

Keslosky, 73 A.3d at 670 n. 5 (emphasis added). Notably, in the instant action, the trial court took no new evidence.

In Borough of East McKeesport v. Special/Temporary Civil Service Commission of the Borough of East McKeesport, 942 A.2d 274, 277-78 n. 3 (Pa.Cmwlth.2008), this Court stated:

This Court’s scope of review of an adjudication of a municipal civil service commission is limited. This Court must affirm the adjudication where a full and complete record is made unless it violates constitutional rights, is not in accordance with the law, it violates the procedural provisions of the local agency law, or the commission’s findings are not supported by substantial evidence. Although the Court may examine the evidence, it may not substitute its judgment for that of the commission. Indeed, the Court may not reweigh the evidence since the commission, as fact finding tribunal, is in a better position to discover the facts based upon the testimony and the demeanor of witnesses.

(Citations and quotation marks omitted).

In Day v. Civil Service Commission of the Borough of Carlisle, 593 Pa. 448, 931 A.2d 646 (2007), our Supreme Court “acknowledge[d] that ‘[ajppellate review of an adjudication of a municipal civil service commission is limited to determining whether constitutional rights have been violated, an error of law has been committed[,] or findings of fact necessary to support the adjudication are not supported by substantial evidence.’ ” Id. at 650 (quoting Lewis v. Civil Serv. Comm’n of Phila., 518 Pa. 170, 542 A.2d 519, 522 (1988));¹ see also Tegzes v. Twp. of Bristol, 504 Pa. 304, 472 A.2d 1386 (1984).²

In Veit v. North Wales Borough, 800 A.2d 391 (Pa.Cmwlth.2002), the borough sought review of a trial court order reversing the commission’s decision to terminate the police chiefs employment. This Court stated:

We ... note that the trial court improperly drew its own findings of fact. Where the trial court took no additional evidence because a complete record was developed before the agency, appellate review of a municipal civil service commission adjudication is limited to determining whether constitutional rights have been violated, an error of law has been committed, or findings of fact necessary to support the adjudication are not supported by substantial evidence. Here, a complete record was made before the Commission. Therefore, the issue before us, as it should have been with the trial court, was whether, under the facts found by the Commission, Veit suffered a deprivation of his constitutional rights because he did not have a pre-termination hearing.

Id. at 897 (citations omitted; emphasis added).

This Court in In Re: Zimmett, 28 Pa.Cmwlth. 108, 367 A.2d 382 (1977), stated:

Our scope of review in a borough civil service appeal where the court below has not taken additional evidence is limited to determining whether the commission abused its discretion or committed an error of law. Banks v. [Bd.] of [Comm’rs ] of Upper Moreland [Twp.], 7 Pa.Cmwlth. 393, 298 A.2d 923 (1973); Gabauer v. Civil Service [Comm’n], 6 Pa.Cmwlth. 646, 297 A.2d 507 (1972). In exercising this review, we are mindful of the role of courts in reviewing borough civil service appeals. Our Supreme Court has said in Baker Case, 409 Pa. 143, 185 A.2d 521, 523 (1962), that ‘[t]he 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 [the employee’s] superiors.’

Zimmett, 367 A.2d at 383 (bolded emphasis added).

In McNaughton v. Civil Service Commission of the Borough of Camp Hill, 168 Pa.Cmwlth. 395, 650 A.2d 1157 (1994), this Court affirmed the trial court’s dismissal of an appeal of a police officer’s suspension, stating:

In deciding issues of substantial evidence, ‘a reviewing court will examine, but not weigh the evidence since the factfinding tribunal is in a better position to find the facts based upon the testimony and the demeanor of the witnesses. The court may not substitute its judgment for that of the agency.’ Civil [Serv. Comm’n ] v. Poles, 132 [Pa.Cmwlth.] 593, 573 A.2d 1169, 1172 (1990), petition for allowance of appeal dismissed, 530 Pa. 31, 606 A.2d 1169 (1992). Substantial evidence is ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, [but must be] ... more than a scintilla and must do more than create a suspicion of the existence of the fact to be established.’ Lewis [v. Civil Serv. Comm’n ], 518 Pa. [170], 542 A.2d [519,] 522 [ (1988) ] (citations omitted).

After review of the record, we determine that Common Pleas did not err as there is substantial evidence of record to support the Commission’s determination. ... While there is conflicting evidence contained in the record, resolving these conflicts is beyond our scope of review, and is a function better suited to the fact finder, in this instance, the Commission. Poles; Gallagher v. [Phila.] Civil [Serv. Comm’n], 16 [Pa.Cmwlth.] 279, 330 A.2d 287 (1974).

McNaughton, 650 A.2d at 1159-60 (emphasis added).

In Skrzysowski v. Attardo, 63 Pa.Cmwlth. 686, 488 A.2d 1031 (1982), this Court determined that the trial court, when reviewing the township board of supervisors’ decision to terminate a police officer’s employment, properly considered whether the board had abused its discretion or committed an error of law. This Court recognized:

Our scope of review ... is the same scope of review as under the Borough Code[³] or First Class Township Code[.] Where the court below has taken no additional evidence we are limited to a determination of whether the Board abused its discretion or committed an error of law[.]

Id. at 1031-32 (citation and footnote omitted; emphasis added). These cases demonstrate that our Supreme Court and this Court recognized the limited role of a reviewing court in borough civil service commission cases. See also Borough of Jenkintown v. Civil Serv. Comm’n, 84 Pa.Cmwlth. 183, 478 A.2d 941 (1984); Appeal of Gregory, 30 Pa.Cmwlth. 589, 374 A.2d 772 (1977).

No new evidence was presented to the trial court in the instant action. Thus, as mandated by Keslosky, McAndrew, Borough of East McKeesport, Day, Tegzes, Veit, Zimmett, Banks, Gabauer, McNaughton, Poles, Skrzysowski, Borough of Jenkintown and Appeal of Gregory,⁴ the trial court was required to affirm the Commission’s adjudication “unless it violate[d] constitutional rights, [was] not in accordance with the law, or the findings of fact [were] not supported by substantial evidence.” Keslosky, 73 A.3d at 670 n. 5.

The Commission found that:

Officer Johnson did not disclose to either [the District Justice] or the District Attorney’s office that the reason he missed the hearing was that he forgot. ... Officer Johnson did not disclose to either [the District Justice] or the District Attorney’s office the two supposed explanations as to why [sic] reasons he ‘forgot’.... Rather, because he omitted the undisputed fact that he forgot, the message that was conveyed to [the District Justice] and the District Attorney’s office was that he was physically not able to attend because he was sick.

Reproduced Record (R.R.) at 765a. The Commission also stated, “Officer Johnson’s behavior demonstrated a repetitive pattern of missed hearings. His behavior showed dishonesty with the Court and the Montgomery County District Attorney’s office.” R.R. at 778a.

The trial court, however, found:

The Commission’s ruling regarding Charge [ ] 3 that Johnson made false statements to the local District Justice was not supported by substantial evidence. Indeed, the only statement Johnson provided to the court for the missed hearing was based on the undisputed fact of Johnson’s sickness. Further, not only did Charge [ ] 3 fail to include language citing Johnson for hot providing all of the reasons for missing the court hearing, but the omitted reasons were also not disputed. Essentially, since the only statement made to District Justice Borek was truthful, albeit not the complete or full rationale, there is insufficient evidence that a reasonable mind might accept as adequate to support the Commission’s conclusion.

Trial Ct. Op. at 5 (emphasis added). The trial court also found for similarly-stated reasons that the Commission erred in sustaining Charge 4. Because the trial court concluded that Charges 3 and 4 should not have been sustained, it modified the Commission’s penalty. This Court in Hodgins v. Civil Service Commission, Borough of Wilkinsburg, 57 Pa.Cmwlth. 474, 426 A.2d 1229 (1981) recognized that Section 1191 of the Borough Code, formerly 53 P.S. § 46191, empowered a court of common pleas to modify a commission’s penalty “only if the Court in doing so does not itself commit an abuse of discretion.” Id. at 1232 (emphasis added).⁵

Here, the trial court disregarded the substantial evidence which supported the Commission’s findings and decision and then made its own findings of fact — “the only statement made to District Justice Borek was truthful, albeit not the complete or full rationale.” Trial Ct. Op. at 5. The undisputed record evidence reveals that Johnson admitted at the May 26, 2010 meeting, the Loudermill⁶ hearing and the Commission hearings that he missed the preliminary hearing because he forgot. Although Johnson also explained that he was sick, he admitted that he would have attended the preliminary hearing if he had remembered. Johnson testified that he “had several issues going on in [his] life that were personal to [him]” and his sickness “was something that was weighing down on [his] mind which was drawing [his] attention away from [his] work.” R.R. at 358a. However, the Commission found that “a direct causal relationship between [Johnson] being ‘sick’ [a sinus infection] and him forgetting the hearing was never established.” R.R. at 762a-763a n. 2. The trial court disregarded this evidence and finding. In contrast, and contrary to the trial court’s ruling, “the only statement made to [the] District Justice ... was [untruthful.... ” Trial Ct. Op. at 5. Johnson did not merely tell the District Justice that he was sick; for if he had, as noted by the trial court, it is possible that he would not have communicated a falsehood. Instead, Johnson told the District Justice that he missed the hearing because he was sick, rather than the real reason — that he forgot about the hearing.⁷

The word “false” is defined as “adjusted or made so as to deceive,” and “intended or tending to mislead.” Merriam-Webster’s Collegiate Dictionary 451 (11th ed.2004). Johnson testified at the hearing before the Commission that his illness did not prevent him from attending the preliminary hearing. He stated, “I was sick. But I would have attended the hearing had I recalled I had the hearing.” R.R. at 410a-411a (emphasis added). The record evidence supports the Commission’s conclusion that Johnson forgot about the hearing and his alleged illness is not the reason that Johnson missed the hearing. Thus, Johnson’s communication to the District Justice and the statement contained in his letter to the District Attorney’s office were falsehoods, intended to mislead the District Justice and the District Attorney’s office that he had a legitimate reason for his absence — sickness.

The record does not support the trial court vacating and reversing the Commission’s findings and conclusions regarding Charges 3 and 4 on the grounds that they were inconsistent with its conclusion relative to Charge 2. Contrary to the trial court’s statement relative to Charge 2, the Commission did not “determine[ ] ... that Johnson’s multiple explanations did not constitute deliberate lies.”⁸ Trial Ct. Op. at 5. Rather, the Commission found that Lansdale Borough (Borough) had “not presented sufficient clear and convincing evidence to substantiate [the] charge.” R.R. at 764a (emphasis added). The Commission explained that given the minor inconsistencies in the testimony of the Borough’s witnesses and the lack of a contemporaneous record, it was not sufficiently clear to the Commission that the multiple excuses Johnson communicated to Chief McDyre constituted deliberate lies.

However, the facts underlying Charge 2 and those supporting Charges 3 and 4 were completely different and pertained to separate factual representations made by Johnson to the District Justice and the District Attorney’s office. In contrast to the multiple explanations Johnson gave at the May 26, 2010 meeting with his employer, Johnson gave only one excuse to the District Justice and the District Attorney’s office — that he had missed the hearing “because he was home sick.”⁹ R.R. at 657a (emphasis added). Since Johnson admitted that his sickness would not have prevented him from attending the hearing had he remembered it, his statement to the District Justice and the District Attorney’s office that he missed the hearing because he was sick was false, communicated to “deceive” or “mislead” about the true reason for his absence. Merriam-Webster’s Collegiate Dictionary 451 (11th ed.2004). Accordingly, the Commission’s rulings on Charges 3 and 4 were supported by substantial evidence and were not inconsistent with the Commission’s findings on Charge 2. Thus, the trial court abused its discretion by disregarding the Commission’s findings of fact that were supported by substantial evidence and making its own findings where it took no new evidence.

The trial court improperly re-weighed the evidence, substituted its judgment for that of the Commission, and made factual findings that were not supported by substantial evidence.¹⁰ I would therefore hold that the trial court erred when it modified the Commission’s determination.

1 . On remand, in Day v. Civil Service Commission of the Borough of Carlisle, 948 A.2d 900, 907 (Pa.Cmwlth.2008), this Court stated:

Where a full and complete record is made of the proceedings before a municipal civil service commission, a reviewing court must affirm the adjudication unless it violates constitutional rights, is not in accordance with the law, it violates the procedural provisions of the local agency law, or the commission's findings are not supported by substantial evidence.

(Emphasis added).

2 . The Tegzes Court held:

Our review of the actions of a municipal civil service commission is limited. Where a full and complete record is made of the proceedings before a municipal civil service commission, a reviewing court must affirm the adjudication of the commission unless it is in violation of the constitutional rights of the appellant or not in accordance with law, the procedural provisions of the local agency law are violated, or a finding of fact of the commission necessary to support its adjudication is not supported by substantial evidencef]

Id. at 1387 (emphasis added). Although Tegzes involved a first class township, and not a borough, Section 645 of the First Class Township Code, Act of June 24, 1931, P.L. 1206, as amended, added by Section 20 of the Act of May 27, 1949, P.L.1955, 53 P.S. § 55645, also included the language: "as the court deems proper.” That section was later repealed in part pursuant to the Act of September 29, 1961, P.L. 1745 and Section 2 of the Act of December 19, 1990, P.L. 1343.

3 . Act of February 1, 1966, P.L. (1965) 1656, as amended, formerly 53 P.S. §§ 45101-48501. The Act of April 18, 2014, P.L. 432, amended Title 8 of the Pennsylvania Consolidated Statutes to consolidate The Borough Code. The Borough Code is now codified at 8 Pa.C.S. §§ 101-3501.

4 . The Majority discounts these cases because therein, "the scope of the trial court's authority ... was not a contested issue.” Majority op. at 817 n. 10. Whether the scope of the trial court’s authority was contested does not change the applicable scope of review which was described in each of the cited cases. Without further distinguishing the other twelve cases cited in this Dissent which clearly support a reviewing court’s limited scope of review, the Majority also claims that Zimmett and Borough of Jenkintown, decided under the former Section 1191 of the Borough Code, are inapposite because they address a commission's modification of a borough's imposed discipline rather than the trial court’s authority to modify a commission imposed discipline. First, as the Majority acknowledges, the language of former Section 1191 of the Borough Code was "essentially identical” to that in the current consolidated Borough Code. Majority op. at 814 n. 7. Further, in reaching its decision, the Zimmett Court relied upon the case of Eppolito v. Bristol Borough, 19 Pa.Cmwlth. 99, 339 A.2d 653 (1975), wherein, this Court reversed the trial court after the trial court, as in the instant case, modified a penalty imposed by a borough civil service commission. The Zimmett Court stated:

In determining whether the Commission abused its discretion, we note that in [Baker Case, 409 Pa. 143, 185 A.2d 521 (1962)], the Court indicated that ‘[u]nder the scheme established by the civil service acts, primary 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.’ [Id.] at 523. In Eppolito v. Bristol Borough, 19 Pa.Cmwlth. 99, 339 A.2d 653 (1975), we reaffirmed this principle by recognizing that the borough council, acting as the employer, has primary discretion as to whether or not a policeman should be dismissed. While in Eppolito we were concerned with a lower court’s abusing its discretion by modifying a council action, we feel our reasoning has equal validity in the instant case.

Zimmett, 367 A.2d at 384 (emphasis added). Thus, the Zimmett Court extended the rationale applied in Eppolito, a case procedurally similar to the instant one, to cases involving a commission’s modification of a borough imposed discipline. Accordingly, Zimmett is not inapposite. It is noteworthy that the Court in Zimmett, also stated: "It is necessary that both court and commission give due respect and weight to the action of the duly constituted municipal body which is authorized to act with respect to charges against members of the police force.” Id. at 384 (emphasis added). The Borough of Jenkintown Court relied on Zimmett and thus, Borough of Jenkintown is also not inapposite.

Finally, contrary to the trial court and Majority's conclusion that substantial evidence did not "support the Commission's finding that Johnson had made false statements because it was uncontroverted that Johnson was sick on the day of the preliminary hearing[,]” that is not the statement for which he was disciplined. Majority op. at 817 n. 10. Rather, he was disciplined for stating that he missed the hearing because he was sick, when he later admitted was not the reason he missed the hearing.

5 . [T]his Court has held that under the Borough Code, a borough council has primary responsibility and discretion for determining whether and how a police officer should be disciplined, and both the trial court and the civil service commission should give due respect and weight to the actions of this duly constituted municipal body. Further, under Section 1191 of the Borough Code, 53 P.S. § 46191, a borough civil service commission has no authority to modify the penalties imposed by borough officials for violations of the Code where the commission finds that the charges against the officer are supported by the evidence and the penalties imposed are not otherwise prohibited.

Borough of Edgeworth v. Blosser, 672 A.2d 854, 856 (Pa.Cmwlth.1996) (emphasis added).

6 . Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985).

7 . Johnson’s letter to the District Justice reads in pertinent part: "I did not attend the Preliminary Hearing because he [sic] was home sick.” R.R. at 657a (emphasis added).

8 . The trial court mischaracterized the Commission’s findings in this regard. The Commission found that the Borough had not provided sufficient evidence to substantiate Charge 2. However, the trial court interpreted that finding as an affirmative determination by the Commission that "Johnson’s multiple explanations did not constitute deliberate lies.” Trial Ct. Op. at 5. That interpretation is not supported by the Commission’s finding.

9 . Johnson testified that he told Chief McDyre “that [he] had already met with District Justice Al Borek and explained to him that I was sick is the reason that I had told him for missing court on that date.” R.R. at 285a (emphasis added).

10 . The trial court further stated that ”[t]here was ... not substantial evidence to support an expansive reading of Charge [] 3 [and Charge [ ] 4] to encompass any omitted statements.” Trial Ct. Op. at 5-6. The trial court reasoned that since Johnson’s statement about being sick was "truthful, albeit not the complete or full rationale,” it concluded that the Commission imposed an unwarranted obligation on Johnson to provide the District Justice and the District Attorney's office with "full and complete” reasons for his absence. Id. Such is not the case. The Commission determined, based on Johnson’s admission, that Johnson stated that he did not appear at the hearing because he was sick, which information was “false” — "tending to mislead.” Merriam-Webster’s Collegiate Dictionary 451 (11th ed.2004).