G. Johnson v. Lansdale Borough and Lansdale Borough Civil Service Commission , 180 A.3d 791 ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
George Johnson :
:
v. : No. 134 C.D. 2013
: Submitted: December 16, 2016
Lansdale Borough and Lansdale :
Borough Civil Service Commission, :
Appellants :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION
BY PRESIDENT JUDGE LEAVITT1 FILED: March 1, 2018
On remand from the Pennsylvania Supreme Court, we review an order
of the Court of Common Pleas of Montgomery County (trial court) that modified the
Lansdale Borough Civil Service Commission’s discipline of Lansdale Borough
police officer George Johnson. The Borough Commission affirmed the Borough’s
termination of Johnson’s employment in spite of ruling that the Borough did not
prove the four charges it lodged against Johnson. After Johnson’s further appeal,
the trial court affirmed the Borough Commission in part but reversed its ruling on
two charges. The trial court held that the single remaining and sustained charge did
not warrant Johnson’s removal and, thus, modified the discipline to a 30-day
1
The panel of judges that heard this case voted 2 to 1 to affirm. Pursuant to our opinion circulation
rules all commissioned judges voted on the opinion. Because one commissioned judge recused, a
tie vote resulted. Accordingly, this opinion is being filed pursuant to Section 256(b) of the Internal
Operating Procedures of the Commonwealth Court, 210 Pa. Code §69.256(b).
suspension without pay. This Court affirmed the trial court, and the Supreme Court
vacated this Court’s order. It did so because this Court proceeded on the incorrect
premise that the trial court’s review of the Borough Commission’s adjudication was
de novo. The Supreme Court held that the trial court’s review was governed by the
narrower contours set forth in Section 754(b) of the Local Agency Law2 and
remanded for this Court’s reconsideration of the trial court’s decision using the
correct standard. Following reconsideration on remand, we affirm the trial court.
Factual and Procedural Background
Johnson, a Borough police officer since 1997, did not appear before the
district justice to testify at a preliminary hearing on May 18, 2010, in a driving under
the influence (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 hearing. Accordingly, the district justice dismissed the DUI
charges against the defendant.
2
It provides:
In the event a full and complete record of the proceedings before the local agency
was made, the court shall hear the appeal without a jury on the record certified by
the agency. After hearing the court shall affirm the adjudication unless it shall find
that the adjudication is in violation of the constitutional rights of the appellant, or
is not in accordance with law, or that the provisions of Subchapter B of Chapter 5
(relating to practice and procedure of local agencies) have been violated in the
proceedings before the agency, or that any finding of fact made by the agency and
necessary to support its adjudication is not supported by substantial evidence. If the
adjudication is not affirmed, the court may enter any order authorized by 42 Pa.C.S.
§ 706 (relating to disposition of appeals).
2 Pa.C.S. §754(b).
2
A criminal complaint dismissed at a preliminary hearing may be
reinstituted so long as the statute of limitations has not run. Commonwealth v.
Thorpe, 701 A.2d 488, 489 (Pa. 1997). However, the decision to reinstitute charges
must be made by the prosecutor. PA.R.CRIM.P. 544, comment.3 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.
3
Rule 544 authorizes the reinstitution of criminal charges that are “dismissed at, or prior to, the
preliminary hearing.” PA.R.CRIM.P. 544. The comment explains that the dismissed charges can
only be reinstituted by the district attorney. The comment states, in relevant part, as follows:
Comment: This rule provides the procedures for reinstituting criminal charges
following their withdrawal or dismissal at, or prior to, the preliminary hearing as
provided in Rule 543, or after the complaint is dismissed when a grand jury declines
to indict.
***
The decision to reinstitute charges must be made by the attorney for the
Commonwealth. Therefore, in cases in which no attorney for the Commonwealth
was present at the preliminary hearing, the police officer may not re-file the
complaint without the written authorization of the attorney for the Commonwealth.
See Rule 507 (Approval of Police Complaints and Arrest Warrant Affidavits by
Attorney for the Commonwealth—Local Option) for procedures for prior approval
of complaints.
PA.R.CRIM.P. 544, comment.
In Commonwealth v. Stehley, 504 A.2d 854, 861 (Pa. Super. 1986), the Pennsylvania
Superior Court held that where the Commonwealth is aggrieved by a magistrate’s dismissal or
reduction of criminal charges, it may refile the charges. However, the criminal defendant must be
“allowed an opportunity to argue against the right to refile.” Id. at 861.
3
Johnson stated that he forgot about the preliminary hearing, which was
scheduled for 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 to attend the preliminary hearing. Johnson responded that he
had already discussed the matter with the district justice and told him that he had
been sick on the day of the hearing. Johnson also stated that 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, and 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.
Reproduced Record at 657a (R.R. __) (emphasis added).
McDyre read the letter and opined that it was a lie, in view of Johnson’s
earlier statement to McDyre that he had forgotten about the hearing. Johnson replied
that he was, in truth, sick and in bed for most of that day, which is why he forgot the
hearing. Johnson also stated that he would have attended the hearing had he
remembered it, notwithstanding his sickness. 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.4 In
attendance were the Borough mayor, Sergeant Bubnis, Sergeant Kromdyk, as well
4
In Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), the U.S. Supreme Court
held that because a public employee has a property interest in his position, he is entitled to a pre-
termination hearing that satisfies the requirements of due process.
4
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 recalled that on May 17,
2010, he “called in sick” and did not work because of a sinus migraine headache.
Notes of Testimony (N.T.), 7/26/2010, at 81; R.R. 267a. The next day, which was
the day of the preliminary hearing on the DUI case, Johnson was not scheduled to
work.5 Johnson stated that he left home to do an errand in the morning. Because he
began to feel ill, he returned home, took medicine and went to bed. Chief McDyre
recommended that Johnson’s employment be terminated for lying about his reason
for missing the preliminary hearing.
On June 18, 2010, the Borough issued the following statement of
charges to Johnson:
1. You failed to appear as required at a preliminary hearing at
Lansdale District Court on Tuesday May 18, 2010, resulting in
the dismissal of that case. You were properly subpoenaed by the
Lansdale District Court to appear and testify at this criminal
proceeding. You did not notify anyone of any inability on your
part to appear for this hearing. Further, this is [the] fourth
occurrence in which you have failed to appear at court when
subpoenaed to do so. This act constitutes a violation of the Code
of the Borough of Lansdale, Civil Service Commission, Chapter
Seven, Section 7.A., Subsections (1)(b) and (d) as well as
Procedural Directive # 6, Code of Conduct, Section I,
Subsections B(2) and (4).
2. When you were questioned as part of an official investigation
regarding the missed court hearing, you were ordered to answer
honestly and completely. During the interview it was revealed
that you were untruthful as to the reason you failed to attend the
hearing. This act constitutes a violation of the Code of the
5
Johnson did not report to work because of a “squad day.” A “squad day” is personal time that
accumulates over the course of working numerous 12–hour shifts. Although an officer does not
work on a squad day, it does not relieve him of an obligation to attend a court hearing.
5
Borough of Lansdale, Chapter Seven, Section 7.A., Subsections
(1)(b) and (d) and Procedural Directive # 6, Code of Conduct,
Section I, Subsection B(4).
3. You made false statements to the Court as to the reason you
had missed the court proceeding. This act constitutes a violation
of the Code of the Borough of Lansdale, Chapter Seven, Section
7.A., Subsections (1)(b) and (d) as well as Procedural Directive
# 6, Code of Conduct, Section I, Subsection B(4).
4. You prepared a document to the District Attorney’s office in
which you falsely stated the reason you had missed a preliminary
hearing and you requested “re-arrest” permission based on the
false statement. This act constitutes a violation of the Code of the
Borough of Lansdale, Chapter Seven, Section 7.A., Subsections
(1)(b) and (d) as well as Procedural Directive # 6, Code of
Conduct, Section I, Subsection B(4).
R.R. 635a-36a.
The stated grounds for all four charges were the same: the Borough’s
Civil Service Ordinance and the Borough’s Rules of Conduct for Police Officers.
The Civil Service Ordinance states, in relevant part, as follows:
A. Grounds for disciplinary action.
(1). No person appointed to a position in the Police
Department pursuant to these rules and regulations may be
suspended without pay or removed and no person promoted in
rank pursuant to these rules and regulations may be reduced in
rank except for the following reasons:
***
(b) Neglect or violation of any official duty;
***
(d) Inefficiency, neglect, intemperance,
disobedience of orders or conduct unbecoming an
officer[.]
6
CODE OF THE BOROUGH OF LANDSDALE, Chapter 7, Civil Service Commission, §7-
7.A., “Suspensions, removals and reductions in rank”; R.R. 614a. Similarly, the
Police Department’s Rules of Conduct state as follows:
B. Police Officers employed in the Police Department of the
Borough shall not be suspended, removed or reduced in rank
except for the following reasons:
***
2. Neglect or violation of any official duty[.]
***
4. Inefficiency, neglect, intemperance,
disobedience of orders, or conduct unbecoming an
officer[.]
Landsdale Borough Police Department, Procedural Directive #6, Rules of Conduct,
Section I; R.R. 612a. In sum, the Borough based its removal decision upon neglect
or violation of duty, inefficiency, disobedience of orders and conduct unbecoming
of an officer.
On June 23, 2010, the Borough Council voted to remove Johnson from
his position as a police officer. Johnson appealed to the Borough’s Civil Service
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 did not 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
7
hearing, which he had forgotten. Johnson also stated that he had already apologized
to the district justice, to whom he had explained 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.” N.T., 7/26/2010, at 17; R.R. 203a. Sergeant
Alex Kromdyk 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 14 and 15, Johnson
worked his scheduled shifts. On May 16 he was not scheduled to work. On Monday,
May 17, he awoke with a migraine headache, called in sick, took medicine and slept
most of the day. Johnson testified that he has a history of sinusitis, which can lead
to migraine headaches. Johnson’s chronic sinusitis has 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.” Id. at 83; 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.” Id. at 86; R.R. 272a.
8
As to the May 26, 2010, meeting, Johnson testified 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 responded that he had not lied. Rather, he explained that
his illness combined with his apprehension over his son’s injury caused him to forget
the hearing.
Johnson also testified that at the Loudermill hearing he specifically
asked McDyre why he believed Johnson had made false statements. McDyre replied
that Johnson had changed his explanation for missing the hearing from forgetfulness
to his son’s injury and illness. Johnson denied the accusation, stating that he had
forgotten about the hearing because his illness and his son’s condition were foremost
in his mind. Johnson again stated that had he remembered the preliminary hearing,
he would have appeared in spite of his illness.
Officer DiBonaventura, who has worked as a police officer for the
Borough for 21 years, including 12 as a detective, testified on Johnson’s behalf.
DiBonaventura testified that McDyre’s May 26, 2010, interview of Johnson was
procedurally flawed because there were no notes taken during the interview. Once
McDyre came to the belief that Johnson lied, McDyre should have written down the
specific questions he had asked and Johnson’s precise responses. Johnson should
have then been allowed to read and sign the synopsis of the meeting, which would
have resolved the discrepancies about what was said by whom that day.
DiBonaventura further testified that a stenographic or audio recording of such an
interview should be made where an officer’s career is at stake.
9
DiBonaventura testified that he was present at Johnson’s Loudermill
hearing as a union representative. His notes of the hearing showed that McDyre and
Johnson disagreed. Johnson stated that he had provided two reasons for missing the
preliminary hearing, and McDyre believed that Johnson changed his story.
Next to testify was Lawrence Miller, D.O., Johnson’s family physician.
Dr. Miller confirmed that Johnson has a history of chronic sinusitis and has had
several bouts with pneumonia. Dr. Miller testified that at the end of March 2010 he
prescribed Levaquin to address Johnson’s sinus problems. When Dr. Miller saw
Johnson on May 24, 2010, his congestion and cough were so severe that he ordered
a computerized axial tomography scan of Johnson’s sinuses. Dr. Miller opined that
Johnson had been sick on May 17 and May 18, 2010, because of the severity of his
illness on May 24, 2010.
Finally, Johnson offered the testimony of Detective Sergeant Joseph
Bennis of the Montgomery Township Police Department. Bennis, who has known
Johnson for several years, testified that on May 18, 2010, at approximately 11:00
a.m., he encountered Johnson and his wife in the municipal building. Johnson
declined to shake Bennis’ hand, stating that he was not feeling well and did not want
to pass along any germs.
Borough Civil Service Commission Decision
The Commission made findings on each of the Borough’s four charges
against Johnson. It sustained three of the four charges as supported by substantial
evidence. It upheld the Borough’s removal of Johnson from his position.
On Charge 1, failure to appear at the preliminary hearing, the
Commission found that, by his own admission, Johnson did not attend the hearing
10
and did not notify the district justice, assistant district attorney or the police that he
would not attend. Accordingly, the Commission sustained Charge 1.
On Charge 2, being untruthful when questioned on May 26, 2010, the
Commission held that the Borough did not make its case because it did not
provide substantial competent evidence sufficient to convince
the Commission that Officer Johnson’s dissembling as to the
reason for the missed hearing constituted deliberate lies during
the May 26th meeting.
Commission Adjudication, 10/28/2010, at 8; Finding of Fact No. 21; R.R. 763a
(emphasis added). The Commission explained that
the Borough did not convincingly demonstrate that during this
meeting Officer Johnson’s admitted provision of multiple and
contradictory explanations as to the missed May 18th hearing
were “lies” or that Officer Johnson did not “fully respond to the
questions” he was asked.
Id. at 9, Finding of Fact No. 24; R.R. 764a. The Commission agreed with Officer
DiBonaventura’s criticism that Chief McDyre did not follow accepted procedures at
the interview on May 26, 2010. McDyre should have made a contemporaneous
record of the precise questions put to Johnson and his precise responses. The
Commission granted Johnson’s appeal with respect to Charge 2.
On Charge 3, making a false statement to the district justice, the
Commission sustained the charge. The Commission noted that Johnson testified that
he forgot to attend the hearing for two reasons, i.e., his illness and his son’s dog bite.
Johnson also testified that he offered one reason to the district justice, i.e., that he
“had been sick that day” because he wanted “to keep the other stuff personal.” N.T.,
7/26/2010, at 175; R.R. 361a. Because Johnson did not provide a full explanation
to the district justice, the Commission found that Johnson made a false statement.
11
Specifically, the Commission found that “the message that was conveyed to [the
district justice] was that he was physically not able to attend because he was sick.”
Commission Adjudication, 10/28/2010, at 10; Finding of Fact No. 29; R.R. 765a.
On Charge 4, preparing a “document to the District Attorney’s office
in which you falsely stated the reason you had missed a preliminary hearing,” R.R.
636a, the Commission sustained the charge. It reasoned that Johnson “did not
disclose to … the District Attorney’s office the two supposed explanations as to why
… he ‘forgot.’” Commission Adjudication, 10/28/2010, at 10; Finding of Fact No.
28; R.R. 765a.
In sum, the Commission held that the Borough made a case on Charges
1, 3, and 4 but not on Charge 2. Based on these rulings, the Commission upheld the
Borough’s removal of Johnson from his position as a police officer.
Trial Court Decision
Johnson appealed to the trial court, which did not take additional
evidence but heard oral argument. The trial court affirmed the Commission on
Charge 1 because it was undisputed that Johnson failed to appear at the preliminary
hearing. The trial court affirmed the Commission’s finding on Charge 2 that the
Borough did not prove that Johnson was untruthful at the May 26, 2010, interview.
The trial court reversed the Commission on Charges 3 and 4.
In doing so, the trial court reasoned that the Commission’s findings on
Charges 2, 3 and 4 could not be reconciled. First, the Borough did not present
evidence that Johnson was healthy on May 18, 2010, and the Commission did not
find as fact that Johnson was not sick on May 18, 2010. Accordingly, Johnson’s
statement that he was sick was true, not false. Second, the Commission specifically
found, on Charge 2, that Johnson’s somewhat inconsistent reasons for missing the
12
hearing were not “deliberate lies” and, thus, not untruthful. Accordingly, the
Commission’s finding that Johnson made a false statement in stating that he was sick
to the district justice could not be reconciled with the Commission’s finding in
Charge 2 that this same statement was not untruthful. The trial court reversed the
Commission’s rulings on Charges 3 and 4 and modified the Borough’s discipline to
a 30-day suspension. The Borough appealed to this Court.
Commonwealth Court Decision
On appeal, this Court affirmed the trial court’s order. 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 4 was appropriate in a de novo review.” Id. at 817. The dissent
would have reversed. The dissent concluded that where a trial court does not take
additional evidence, the trial court reviews the commission adjudication for abuse
of discretion or error of law. Id. at 820. The dissent believed that 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.” Id. at 824. The dissent
concluded that “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.” Id.7
6
We based our decision on Section 1191(c) of the Borough Code, which authorizes a trial court
to review a municipal civil service commission’s decision and make a “determin[ation] as the court
deems proper.” 8 Pa. C.S. §1191(c). We also relied on existing case law, such as, Lower Merion
Township v. Turkelson, 152 A.2d 724 (Pa. 1959), which held that the broad grant of discretion in
Section 1191(c) provides for a de novo review.
7
In its opinion and order, the trial court did not make any findings of fact but, rather, reviewed the
Borough Commission’s findings of fact against a substantial evidence challenge.
13
Pennsylvania Supreme Court Decision
On further appeal, in Johnson v. Lansdale Borough, 146 A.3d 696 (Pa.
2016), the Pennsylvania Supreme Court held that where, as here, the trial court does
not take new evidence, it must review a civil service commission’s decision under
the deferential standard of appellate review set forth in Section 754(b) of the Local
Agency Law, 2 Pa. C.S. §754(b).8 However, the Supreme Court explained that it
granted allocatur to address only the trial court’s standard of review. It noted,
specifically, that it “denied allocatur on the issue of whether the Commonwealth
Court committed reversible error by affirming the trial court’s disregard of factual
findings made by the Commission, which were supported by substantial evidence of
record.” Johnson, 146 A.3d at 706 n.10. Accordingly, the Supreme Court did not
consider the Borough’s argument that the trial court “erroneously substituted its
judgment for that of the Commission.” Id. at 706 n.11. It reiterated that the issue of
whether this Court erred by affirming the trial court was “beyond the scope of this
appeal.” Id. at 714 n.16. The Supreme Court vacated this Court’s order and
remanded for this Court’s review of the trial court’s decision using the correct
standard of review.
8
The Pennsylvania Supreme Court held that Section 1191(c) of the Borough Code does not
authorize de novo review in every appeal. 8 Pa. C.S. §1191(c). Section 754 of the Local Agency
Law directs a “de novo review where there is an incomplete record on appeal and [directs] limited,
deferential review where the trial court proceeds on the record as made before the civil service
commission.” Johnson, 146 A.3d at 712. The Pennsylvania Supreme Court “disapproved” the
“Turkelson line of cases to the extent it provided for a broad de novo review by the trial court in
appeals where no new evidence was presented” and adopted the “deferential standard of appellate
review set forth in Section 754(b) of the Local Agency Law.” Id. at 713.
14
Issues on Appeal
The Borough’s appeal to this Court is twofold. First, the Borough
argues that the trial court erred in disturbing the Commission’s conclusion on
Charges 3 and 4. It argues that substantial evidence supports the Commission’s
findings that Johnson made a false statement to the district justice and in his draft
letter to the district attorney. Second, the Borough claims that even if the trial court
had properly concluded that the Commission’s findings on Charges 3 and 4 were not
supported by substantial evidence, the trial court erred in modifying the penalty from
termination to suspension.
Analysis
A. Trial Court’s Reversal of Charges 3 and 4
The central question is whether the trial court erred in reversing the
Commission’s ruling on Charges 3 and 4, which accused Johnson of making a false
statement to the district justice and in his draft letter to the district attorney. The
Borough contends that there is no inconsistency in the Commission’s decision to
dismiss Charge 2 while sustaining Charges 3 and 4.
The Commission dismissed Charge 2, which charged Johnson with
being untruthful at the May 26, 2010, meeting. The Commission based this ruling
on the following findings of fact:
21. The Commission finds that Chief McDyre and Sergeant
Kromdyk both credibly testified as to their general recollection
of the May 26th meeting. Both testified that Officer Johnson
provided at least three different and somewhat contradictory
reasons why he missed the preliminary hearing. Despite this
conclusion, the Commission finds that the Borough was unable
to provide substantial competent evidence sufficient to convince
the Commission that Officer Johnson’s dissembling as to the
15
reason for the missed hearing constituted deliberate lies during
the May 26th meeting.
22. Although the Commission finds that at the May 26th meeting
Officer Johnson offered several incompatible excuses for
missing the preliminary hearing, there were minor
inconsistencies between the testimony of the Borough’s
participants at the May 26th meeting such as to cloud the
recollection of the meeting and whether Officer Johnson
engaged in lying to hide his derelictions of duty.
***
24. The Commission finds that the Borough did not follow
accepted investigatory procedures in regards to memorializing
the May 26th meeting. They did not create a contemporaneous
written statement and instead relied on the subsequent memo
created by Sergeant Kromdyk. Given the complexity of the May
26th meeting and the importance of recording the precise
chronology and wording of the explanations offered by Officer
Johnson, it was critical that a more complete and
contemporaneous written record of the meeting be created. The
Commission accepts the testimony of the Borough witnesses to
the extent that their testimony demonstrated that Officer Johnson
provided a false statement to the District Court and attempted to
provide a false document to the Montgomery County District
Attorney’s office regarding his absence at the preliminary
hearing. However, without a better written record of the May
26th meeting, the Borough did not convincingly demonstrate that
during this meeting Officer Johnson’s admitted provision of
multiple and contradictory explanations as to the missed May
18th hearing were “lies” or that Officer Johnson did not “fully
respond to the questions” he was asked.
Commission Adjudication, 10/28/2010, at 8-9; Findings of Fact Nos. 21, 22 and 24;
R.R. 763a-64a (emphasis added) (internal citations to record omitted). In short, the
Commission found, as fact, that Johnson’s somewhat contradictory statements to
Chief McDyre on why he missed the district magistrate hearing did not constitute
“deliberate lies” and, thus, were not untruthful.
16
The Commission sustained Charges 3 and 4, which charged Johnson
with making a false statement to the district justice and the district attorney. In so
ruling, the Commission made the following findings of fact:
27. The Commission finds that Officer Johnson did not disclose
to either Judge Borek or the District Attorney’s office that the
reason he missed the hearing was that he forgot.
28. The Commission finds that Officer Johnson did not disclose
to either Judge Borek or the District Attorney’s office the two
supposed explanations as to why … he “forgot.”
29. [Johnson] omitted the undisputed fact that he forgot, the
message that was conveyed to [the district justice] and the
[d]istrict [a]ttorney’s office was that he was physically not able
to attend because he was sick. This was stated in Officer
Johnson’s own words. (See: Exhibit, B-8L, draft letter to
Assistant District Attorney Christopher Maloney “I did not
attend the Preliminary Hearing because he [sic] was home
sick.”)
Id. at 10, Findings of Fact Nos. 27, 28, 29; R.R. 765a (emphasis in original) (internal
citation to record omitted). Based on these findings of fact, the Commission found
that the Borough “presented substantial and convincing evidence proving the third
and fourth charges.” Id.; R.R. 767a; Finding of Fact No. 36.
The trial court conducted its review of the Commission’s adjudication
under Section 754(b) of the Local Agency Law, 2 Pa. C.S. §754(b). To be precise,
the trial court described its standard of review as “limited to determining whether
the adjudication ‘violates constitutional rights, is not in accordance with the law, [or]
violates the procedural provision[s] of the local agency law, or the commission’s
findings are not supported by substantial evidence.’” Trial Court Rule 1925(a)9 Op.
9
It provides, in pertinent part, that
17
at 2 (quoting Moorehead v. Civil Service Commission of Allegheny County, 769 A.2d
1233, 1237-38 (Pa. Cmwlth. 2001)). Stated otherwise, the trial court reviewed the
Commission’s adjudication under the “narrow contours of Section 754(b) of the
Local Agency Law,” as our Supreme Court has directed. See Johnson, 146 A.3d at
714.
The trial court reversed the Commission’s rulings on Charges 3 and 4
because substantial evidence of record did not support the Commission’s findings
on those charges. In doing so, the trial court relied upon the Commission’s
credibility determinations and did not make its own findings of fact. The trial court
explained as follows:
In concluding there was not substantial evidence to support the
Commission’s findings affirming Charges # 3 and # 4, the Court
did not make alternative findings of fact and conclusions of law
or override the credibility determinations made by the
Commission as alleged by [the Borough on appeal]. Upon
review of the Commission’s Findings of Fact and subsequent
Conclusions of Law, the Commission’s Conclusions of Law are
inconsistent with the Commission’s Findings of Fact.
Trial Court Rule 1925(a) Op. at 6 (emphasis added). The trial court held that the
Commission’s findings of fact did not support its conclusions of law.
First, the trial court observed that the Commission’s own factual
findings showed only that Johnson omitted the fact that he forgot the hearing. It did
not find that Johnson was untruthful when he stated that he was sick. It did not find
upon receipt of the notice of appeal, the judge who entered the order giving rise to
the notice of appeal, if the reasons for the order do not already appear of record,
shall forthwith file of record at least a brief opinion of the reasons for the order, or
for the rulings or other errors complained of, or shall specify in writing the place in
the record where such reasons may be found.
PA. R.A.P. 1925(a).
18
that Johnson was not sick. Johnson’s illness on the day of the preliminary hearing
was undisputed, as the trial court noted:
[T]he Commission did not make any findings of fact that Johnson
was not sick on the day in question. Even during oral argument,
[the Borough] conceded Johnson was at home, sick on the
afternoon on which the preliminary hearing was scheduled.
Id. at 3 (emphasis added).
Johnson made other statements as well. He stated that notwithstanding
his illness, he would have attended the hearing had he remembered it because it was
important. Johnson also stated at the May 26, 2010, meeting with his supervisors
that he did not remember the hearing because of his illness and his child’s injury.
The trial court observed that there was no dispute in the record about the “veracity”
of these other statements made by Johnson. Id. at 5. The Commission itself ruled
that Johnson’s multiple explanations did not constitute “deliberate lies” for purposes
of the Borough’s Charge 2, i.e., being “untruthful as to the reason you failed to attend
the hearing.” R.R. 636a. The trial court held that it was a “contradiction in terms”
for the Commission to hold that Johnson’s statements were not untruthful with
respect to Charge 2 but were false with respect to Charges 3 and 4.
Second, the trial court rejected the Commission’s
“expansive reading” of Charges 3 and 4. Trial Court Rule 1925(a) Op. at 5. Charges
3 and 4 accused Johnson of making false statements. They did not charge him with
failing to provide “all of the reasons” for missing the preliminary hearing. Id. The
Borough proved, at worst, that at times Johnson’s statements were incomplete.
There is another reason to affirm the trial court decision on Charge 4,
which charged Johnson with making a false statement in his draft letter to the district
attorney. The Borough offered no evidence that anyone but Johnson and Chief
19
McDyre ever read the draft letter. A “statement,” whether true or false, must be
conveyed. In Finding of Fact No. 29, the Commission found that the “message that
was conveyed to … the District Attorney’s office was that he was physically not able
to attend because he was sick.” Commission Adjudication, 10/28/2010, at 10;
Finding of Fact No. 29; R.R. 765a (emphasis added). This is incorrect because no
message was conveyed to the District Attorney. The Commission characterized
Johnson’s statement as implying he was physically unable to attend. Regardless of
whether this is a fair and accurate characterization, in actuality this “message” was
not conveyed to the District Attorney.
We discern no error in the trial court’s conclusion that the Borough did
not make its case on Charges 3 and 4. The Borough did not charge Johnson with
making incomplete or misleading statements but, rather, with making false
statements. The Borough charged that Johnson’s statement that he missed the
hearing for illness was false, but the Commission’s findings of fact do not support
that conclusion. Nor did the Commission find Johnson’s other proffered reasons for
missing the hearing to be untruthful. Because the evidence did not prove that
Johnson made a false statement, but only an incomplete statement, the Borough
failed to substantiate Charges 3 and 4.
2. Trial Court Modification of Penalty
Next, the Borough asserts that even if we sustain the trial court’s
conclusion on Charges 3 and 4, the trial court erred or abused its discretion in
modifying the penalty from a termination to suspension. The trial court modified
the penalty based on Chief McDyre’s testimony that if Johnson were guilty only of
missing a hearing, he would not have recommended discharging him. The Borough
argues that Chief McDyre had no authority to decide whether Johnson should be
20
discharged. Chief McDyre’s job was to make a recommendation to the Borough
Council, which must then accept, reject or modify the recommended penalty. The
trial court’s modified penalty is merely a “guess” as to what the Borough would have
done had only Charge 1 been before it. Borough Brief at 36.
In support, the Borough cites Banks v. Board of Commissioners of
Upper Moreland Township, 298 A.2d 923 (Pa. Cmwlth. 1973). In Banks, the
township removed the police chief for inefficiency, neglect, intemperance in
performance of duties, and conduct unbecoming an officer. The police chief
appealed. The civil service commission upheld the charges, but in light of his 18
years of service, modified his punishment to a ten-month suspension and reduction
in rank. The police chief appealed, and the trial court upheld the charges; however,
it determined that the commission had erred in reducing the penalty. The trial court
held that once the commission found sufficient evidence to support the charges, it
had no discretion to alter the penalty. The police chief then appealed to this Court.
We agreed that the commission had no authority to modify a penalty after finding,
as a matter of law, that the township had proved the charges.
The Borough also directs the Court to In re Appeal of Zimmett, 367
A.2d 382 (Pa. Cmwlth. 1977). In that case, the borough demoted a police chief to
patrolman after learning that he had been under the influence of intoxicants while on
duty. The borough council then discharged him for intoxication and for violating
police department policy. The borough civil service commission rejected the
borough council’s finding that the police chief had violated police department
policy, but it upheld the charge of intoxication on duty. The commission modified
the penalty from dismissal to suspension. On appeal, the trial court held that the
commission abused its discretion by modifying the penalty and reinstated the
21
termination. This Court affirmed the trial court. The borough code permitted
dismissal or suspension for intoxication on duty. The commission assumed that the
borough council would have ordered suspension, as opposed to dismissal, had
intoxication been the sole charge, but this was mere speculation.
Johnson responds that Banks is inapposite because in that case the civil
service commission attempted to modify a penalty after upholding all of the
borough’s charges against the officer. He also responds that Zimmett was later
clarified in Herrmann v. Civil Service Commission of Borough of Jenkintown, 478
A.2d 961 (Pa. Cmwlth. 1984), to mean that where the most serious charge is upheld,
the commission cannot modify the borough’s penalty.
In Herrmann, a police officer was suspended indefinitely for several
acts of misconduct while on duty, which included drinking alcohol, smelling of
alcohol and hitting a borough employee. The borough civil service commission
sustained one charge, i.e., the charge that the officer’s breath smelled of alcohol. As
a result, the commission modified the suspension of indefinite duration to a four-
and-a-half-month suspension. Both parties appealed, and the trial court ordered a
one-year suspension.
On further appeal, this Court reversed the trial court. In doing so, we
reviewed the relevant precedent, beginning with Borough of Bristol v. Downs, 409
A.2d 467 (Pa. Cmwlth. 1979).
In Borough of Bristol, two boys asked a police officer for a ride home
in the officer’s patrol car because of rain. The officer transported them to a location
four blocks outside of the borough. While stopped, the patrol car was hit by another
vehicle. No one was injured, but the officer was suspended for three days and
demoted from sergeant to patrolman for violating police department policy. The
22
officer appealed to the borough’s civil service commission, which considered the
borough’s charges that the officer failed to notify the police dispatcher before
leaving the borough limits; failed to inform the police dispatcher that he was
transporting the boys; failed to obtain an incident number from the police dispatcher;
and failed to file an official report with respect to transporting the boys. The borough
asserted that these actions constituted neglect or violation of official duties,
inefficiency, disobedience of orders and conduct unbecoming an officer.10 The
commission concluded that the officer had violated his official duties, but it rejected
the charges of inefficiency, neglect, disobedience of orders, and conduct
unbecoming an officer as not substantiated. As such, it upheld the three-day
suspension, but reversed the demotion. The borough appealed to the trial court,
which affirmed the commission. Before this Court, the borough argued that the
commission exceeded its authority by modifying the penalty. We rejected this
argument because the borough proved only the least serious charge. Borough of
Bristol, 409 A.2d at 49.
In Herrmann, the Court next considered the precedent in Zimmett, 367
A.2d 382, where the serious charge of drinking on the job was sustained while the
other less serious charges were dismissed. This was in contrast to Borough of
Bristol, where the officer, who was trying to be a good samaritan, was cleared of the
serious charges. Only the least serious charge was sustained. This Court concluded
that the facts in Herrmann “fell into the gray area” between Borough of Bristol and
Zimmett.
We reconciled the precedent as follows:
10
Cf. CODE OF BOROUGH OF LANSDALE, §7-7.A.
23
The rule of law to be discerned from an analysis of Borough of
Bristol and Zimmett is that the commission must review the
charges de novo and determine whether the penalty imposed by
borough officials is commensurate with the charges sustained by
the evidence. Where the charges brought by the borough are
found by the commission to be supported by the evidence, the
penalty imposed is not otherwise prohibited, and the selection of
the penalty is not arbitrary, discriminatory or an abuse of
discretion, the commission may not modify the council’s
penalty. Where the charges brought are not fully substantiated,
however, and/or the penalty imposed by the council is severely
disproportionate to any charges which are sustained, the penalty
constitutes an abuse of the council’s discretion and the
commission has authority to modify it.
Herrmann, 478 A.2d at 963 (internal footnote omitted) (emphasis added).
Accordingly, we held that the borough’s penalty of indefinite suspension “must be
considered excessively disproportionate as punishment for the single charge
sustained” out of the many charges that were reversed. Id. Further, the borough’s
indefinite suspension was vague and specified no conditions which the officer could
satisfy to end it. We reversed the trial court and reinstated the four-and-a-half-month
suspension imposed by the commission.
The case sub judice is closer to Borough of Bristol and Herrmann than
to Zimmett. As in Borough of Bristol and Herrmann, the Borough’s more serious
charges against Johnson have been found not to be substantiated by substantial
evidence. The only charge supported by the evidence is Charge 1, failure to appear
at the preliminary hearing. This Court has instructed that “[w]here the charges
brought are not fully substantiated … and/or the penalty imposed by the council is
severely disproportionate to any charges which are sustained, the penalty constitutes
an abuse of the council’s discretion and the commission has authority to modify it.”
Herrmann, 478 A.2d at 963. Here, the question is whether Johnson’s removal is
24
disproportionate to the single sustained charge of not attending a preliminary
hearing.
Borough of Bristol, Herrmann and Zimmett involve modification of
discipline by a civil service commission. Modification by the trial court is
authorized by Section 754(b) of the Local Agency Law, which states, in relevant
part, as follows:
the court shall affirm the adjudication unless it shall find that the
adjudication is in violation of the constitutional rights of the
appellant, or is not in accordance with law, or that the provisions
of Subchapter B of Chapter 5 (relating to practice and procedure
of local agencies) have been violated in the proceedings before
the agency, or that any finding of fact made by the agency and
necessary to support its adjudication is not supported by
substantial evidence. If the adjudication is not affirmed, the court
may enter any order authorized by 42 Pa.C.S. §706 (relating to
disposition of appeals).
2 Pa. C.S. §754(b) (emphasis added). Section 706 of the Judicial Code authorizes
the entry of different orders. It states:
An appellate court may affirm, modify, vacate, set aside or
reverse any order brought before it for review, and may remand
the matter and direct the entry of such appropriate order, or
require such further proceedings to be had as may be just under
the circumstances.
42 Pa. C.S. §706 (emphasis added). See also Kish v. Annville-Cleona School
District, 645 A.2d 361, 363 (Pa. Cmwlth. 1994) (a “trial court [is] empowered to
enter an order modifying the adjudication” of a local agency where key findings of
fact are not supported by substantial evidence).
Here, the trial court followed the reasoning set forth in Herrmann and
exercised its authority under Section 706 of the Judicial Code. As noted by the trial
25
court, Johnson would not have been removed from his position simply because of
his failure to attend a hearing. Chief McDyre testified as follows:
Q. Chief, let me ask you this question. If … you had not
concluded that [Johnson] was not being truthful with you, and it
was just a missed hearing, … I take it you would not have
recommended termination?
A. Absolutely not.
Q. I’m sorry?
A. I would not recommend termination.
N.T., 7/19/2010, at 140; R.R. 142a. Accordingly, the trial court modified the penalty
to a 30-day suspension without pay.
The Borough argues that the trial court’s reasoning is flawed because
the Borough, not Chief McDyre, had the ultimate authority on a penalty. This is true
but irrelevant. Under Herrmann, once it is held that not all of the charges are
substantiated, it must be determined whether the penalty is proportionate to the
remaining charge or charges. If not, the penalty constitutes an abuse of discretion
by the municipality and may be modified by the trial court sitting in an appellate
capacity.
As Chief McDyre explained, Johnson’s missing the hearing for a
memory lapse was not critical:
We move on, we are in the healing stage, we make a way he’s
not going to forget about a hearing. He’s going to make a family
calendar. Everything is going good.
N.T., 7/19/2010, at 136; R.R. 138a. Further, Johnson’s prior disciplinary record for
missing hearings demonstrates that discharge would be a disproportionate discipline
for that single act. On June 25, 2009, Johnson failed to appear at two preliminary
26
hearings. Because the 2009 event was deemed “the third court hearing [he] missed
[he was] issued a written reprimand.” R.R. 658a.11 The written reprimand stated that
“[f]urther violations of this type will result in appropriate and progressive
discipline.” Id. “Progressive discipline” suggests something short of discharge,
such as suspension. Otherwise, the reprimand would have stated, specifically, that
the next time Johnson missed a hearing, he would be dismissed. Here, the trial court
ordered suspension, which is “progressive” discipline.
The Borough’s Civil Service Ordinance provides that where “charges
are dismissed, the record shall be sealed and not be available for public inspection.”
CODE OF THE BOROUGH OF LANSDALE, §7-7(D)(2); R.R. 616a. It also provides that
where the Commission “finds that sufficient evidence has been introduced to support
the charge, the Commission shall not modify the penalty imposed … unless it finds
that the penalty imposed was arbitrary, discriminatory or an abuse of the Borough
Council’s or Mayor’s discretion.” Id. at §7-7(D)(3); R.R. 616a. The Borough’s
Civil Service Ordinance does not address the situation where some charges are found
supported by substantial evidence, but others are not. However, even where charges
are sustained, the Commission can modify a penalty for abuse of discretion.
Implicitly, therefore, the Civil Service Ordinance authorizes a modification where
the Borough’s most serious charges are dismissed.
We conclude that a removal of Johnson on the single sustained charge
would have constituted a disproportionate penalty. Accordingly, the trial court acted
within its authority under Section 754(b) of the Local Agency Law and Section 706
11
Johnson missed three hearings on July 21, 1998; one hearing in April 2006; and two hearings
on June 25, 2009. R.R. 610a. Including the 2009 event, he missed a total of six hearings.
However, his reprimand was based on the number of hearing days missed, i.e, three, and not the
total number of hearings missed over the course of those three days.
27
of the Judicial Code in its modification of the Commission’s order that Johnson be
dismissed.
Conclusion
For all the above reasons, the trial court did not err in concluding that
substantial evidence of record did not support Charges 3 and 4, and the trial court
acted within its authority under the Local Agency Law and the Judicial Code by
modifying the discipline from a removal to a 30-day suspension. Thus, we affirm
the order of the trial court.
______________________________________
MARY HANNAH LEAVITT, President Judge
28
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
George Johnson :
:
v. : No. 134 C.D. 2013
:
Lansdale Borough and Lansdale :
Borough Civil Service Commission, :
Appellants :
ORDER
AND NOW, this 1st day of March, 2018, the order of the Court of
Common Pleas of Montgomery County, dated January 3, 2013, in the above-
captioned matter is AFFIRMED.
______________________________________
MARY HANNAH LEAVITT, President Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
George Johnson :
:
v. :
:
Lansdale Borough and Lansdale :
Borough Civil Service Commission, : No. 134 C.D. 2013
Appellants : Submitted: December 16, 2016
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
DISSENTING OPINION
BY JUDGE COVEY FILED: March 1, 2018
I respectfully dissent from the Majority’s decision affirming the trial
court’s modification of the Lansdale Borough (Borough) Civil Service Commission’s
(Commission) termination of George Johnson’s (Johnson) employment. In the
Supreme Court’s remand of the instant case to this Court, it explained a court’s
deferential standard of review which “will both permit local agencies to manage
their employees without fear that a trial court may ‘second-guess’ their every
prerogative and will breathe vitality into civil service commissions, which
otherwise would appear to constitute nothing more than an unnecessary stop between
a local agency decision and trial court review.” Johnson v. Lansdale Borough, 146
A.3d 696, 711, 713 (Pa. 2016) (Johnson II) (emphasis added). Notwithstanding this
clear mandate, the Majority herein upholds the trial court’s “second-guess[ing]” of
the Commission’s decision. Id. Based upon the Supreme Court’s unequivocal
direction, I would reverse the trial court because without taking any additional
evidence, the trial court disregarded the Commission’s factual findings concerning
the underlying conduct, improperly dismissed two of the charges and, based upon its
conclusion that only one charge had been proven, modified the Commission’s
penalty.
Because the parties herein presented no new evidence before the trial
court, the trial court was required to affirm the Commission’s adjudication absent “a
constitutional violation, an error of law, a failure by the [Commission] to comply
with the statute’s procedural provisions, or a material finding of fact that is
unsupported by substantial evidence.” Johnson II, 146 A.3d at 711. The Johnson II
Court also clarified that upon judicial review of the Commission’s decision, a court
must give weight and credence to local civil service determinations.
In the instant case, the subject disciplinary action was based on four
charges of alleged misconduct: Charge 1 – Johnson failed to appear at a preliminary
hearing; Charge 2 - Johnson failed to fully and honestly respond to an investigation
into his failure to appear, which included a meeting at which Johnson was questioned
by Borough Police Chief, Robert McDyre (Chief McDyre); Charge 3 - Johnson made
false statements to a District Justice regarding his failure to appear at the preliminary
hearing; and, Charge 4 – Johnson prepared a document to the Montgomery County
District Attorney’s (District Attorney) office containing false information pertaining
to his failure to appear at the preliminary hearing.
The Commission concluded that the Borough had failed to provide
substantial evidence to prove Charge 2, but had proven Charges 1, 3 and 4.
Specifically, the Commission found:
[Johnson] did not disclose to either [District Justice Borek
(District Justice)] or the District Attorney’s office that the
reason he missed the hearing was that he forgot. . . .
[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
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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 (bold and italic emphasis added). Thus, the
Commission found as fact that the reason Johnson missed the preliminary hearing
was because he forgot about it. The Commission also stated: “[Johnson’s] behavior
demonstrated a repetitive pattern of missed hearings. His behavior showed
dishonesty with the [Lansdale District] Court [(District Court)] and the [] District
Attorney’s office.” R.R. at 773a.
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 [District C]ourt 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 not providing all of
the reasons for missing the [District C]ourt hearing, but the
omitted reasons were also not disputed. Essentially, since
the only statement made to [the District Justice] 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). Thus, the trial court completely disregarded the
Commission’s express finding as to the reason for Johnson missing the hearing
which, as will be explained below, was supported by more than sufficient evidence.
The trial court also found for similarly-stated reasons that the
Commission erred in sustaining Charge 4. Further, the trial court concluded that
since the Commission had dismissed Charge 2, it was inconsistent for the
Commission to find Johnson had been untruthful under Charges 3 and 4 and sustain
those charges. Accordingly, the trial court modified the Commission’s penalty.
However, this Court in Hodgins v. Civil Service Commission, Borough of
AEC - 3
Wilkinsburg, 426 A.2d 1229 (Pa. Cmwlth. 1981), held that Section 1191 of the
former Borough Code1 empowered a trial court to modify a commission’s penalty
“only if the [trial c]ourt in doing so does not itself commit an abuse of discretion.”
Hodgins, 426 A.2d at 1232 (emphasis added).2
Here, the trial court disregarded the substantial evidence that supported
the Commission’s findings and made its own findings of fact when it found that “the
only statement made to [the District Justice] was truthful, albeit not the complete or
full rationale[,]” and that there were multiple reasons Johnson missed the preliminary
hearing.3 Trial Ct. Op. at 5. The undisputed record evidence reveals that Johnson
1
Act of February 1, 1966, P.L. (1965) 1656, formerly 53 P.S. § 46191.
Section 1191 of the former Borough Code, along with the other
provisions of the Borough Code, was repealed by Section 3(2) of the
Act of April 18, 2014, P.L. 432, effective June 17, 2014. The
provisions of the new Borough Code are now found in Title 8 of the
Pennsylvania Consolidated Statutes, 8 Pa.C.S. §§ 101–3501.
Ray v. Civil Serv. Comm’n of Borough of Darby, 131 A.3d 1012, 1018 n.2 (Pa. Cmwlth. 2016).
2
[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, [formerly] 53 P.S. § 46191, a
borough civil service commission has no authority to modify the
penalties imposed by borough officials for violations of the [Borough]
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).
3
The Majority contends that the dissent to this Court’s opinion in Johnson v. Lansdale
Borough, 105 A.3d 807 (Pa. Cmwlth. 2014) (Johnson I), incorrectly claimed that the trial court
made its own findings of fact. The Majority states: “In its opinion and order, the trial court did not
make any findings of fact but, rather, reviewed the Borough Commission’s findings of fact against a
substantial evidence challenge.” Majority Op. at 13 n.7. Although the trial court’s opinion did not
set forth a list of specific factual findings, the trial court’s representation that “the only statement
made to [the District Justice] was truthful,” is a factual finding that was not made by the
AEC - 4
admitted at the May 26, 2010 meeting, the Loudermill4 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. He further explained, “had I remembered
absent these other things . . . I would have attended whether I was sick or not.” Id.(Emphasis added). Notably, 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 Commission expressly found
based on Johnson’s own testimony that his reason for missing the hearing was
that he forgot about it. Based on this evidence, which included Johnson’s own
testimony, the trial court clearly erred in substituting its judgment and making
findings then replacing its findings for those made by the Commission.
Contrary to the Commission’s well-supported factual finding that
Johnson’s statement to the District Justice was untruthful, the trial court found
otherwise. Critically, Johnson’s falsity was not his statement regarding his physical
condition, but that his physical condition was his reason for missing the preliminary
hearing. Johnson did not merely tell the District Justice that he was sick, for if he
had, it is possible that he would not have communicated a falsehood. Instead,
Commission, but rather by the trial court. R.R. at 835a. See, e.g., In re Culbertson’s Estate, 152 A.
540 (Pa. 1930). Further, the trial court’s conclusion that Johnson’s sickness was only one of the
reasons that he missed the hearing is contrary to the Commission’s finding that “that the reason
[Johnson] missed the hearing was that he forgot.” R.R. at 765a (emphasis added). The
Commission did not find that there were multiple reasons why Johnson missed the hearing.
Thus, here, as in the dissent in Johnson I, this Dissent maintains that the trial court did
impermissibly act as fact finder.
4
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985).
AEC - 5
Johnson told the District Justice that he missed the hearing because he was sick,
rather than the real reason (as factually determined by the Commission) – that he
forgot about the hearing.5
“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 Commission hearing 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 preliminary hearing. Thus, Johnson’s communication to the District
Justice and the statement 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.
In addition, 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 they were inconsistent with the Commission’s 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.” Trial Ct. Op. at 5. Rather, the Commission found that the
Borough had “not presented sufficient clear and convincing evidence to
5
Similarly, Johnson’s letter to the District Attorney’s office reads in pertinent part: “I did
not attend the Preliminary Hearing because [I] was home sick.” R.R. at 657a (emphasis added).
The Majority focuses on only part of Johnson’s representations - that he was sick. By
doing so, it creates an artificial construct that he was honest in his statements regarding his health.
The veracity of Johnson’s statement about his health was not the reason for his discharge. Instead,
the Borough terminated his employment for lying about his reason for missing the hearing. The
Commission correctly elaborated: “[Johnson’s] health on that date was never really a central issue.
This was particularly true after [Johnson] testified that being sick in and of itself would not have
prevented him from attending the May 18, 2010 hearing.” R.R. at 762a n.2.
AEC - 6
substantiate [Charge 2].” R.R. at 764a (emphasis added). The Commission
explained that, given the minor inconsistencies in the Borough’s witnesses’ testimony
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.
The Majority repeats the trial court’s mischaracterization of the
Commission’s findings in this respect and construes the evidence to create ambiguity
where none exists. The Commission’s decision clearly explains that the
Commission found that the Borough had not provided sufficient evidence to
substantiate Charge 2. Contrary to the trial court’s representation, the Commission
in no manner made an affirmative determination that “Johnson’s multiple
explanations did not constitute deliberate lies.” Trial Ct. Op. at 6 n.8. Echoing the
trial court’s characterization of the Commission’s decision, the Majority states: “The
Commission itself ruled that Johnson’s multiple explanations did not constitute
‘deliberate lies’ for purposes of the Borough’s Charge 2[.]” Majority Op. at 19.
These characterizations are unsupported and do not in any regard reflect the
Commission’s findings. Further, such characterizations were expressly discounted
by the Pennsylvania Supreme Court in its opinion remanding this case, wherein, it
stated:
The [trial] court reached this conclusion without
acknowledging that the Commission’s finding of
insufficient evidence supporting the second charge appeared
to be based upon the Borough’s failure to create a record of
the May 26, 2010 internal investigation meeting, rather than
any credibility determination regarding Officer Johnson’s
explanations for failing to appear at the preliminary hearing.
Johnson II, 146 A.3d at 702 n.6.
Notwithstanding, the Majority perpetuates the trial court’s
mischaracterization, provides an “incomplete” description of the Commission’s
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findings and paints an inaccurate picture of the Commission’s determination.
Majority Op. at 20. Both the Majority and the trial court minimize Johnson’s
misconduct and displace the Commission’s proper approval of the Department’s
disciplinary action.
Further, the facts underlying Charge 2 and those supporting Charges 3
and 4 were completely different and pertained to separate factual representations
Johnson made to the District Justice and in the letter he prepared for the District
Attorney’s office. In contrast to the multiple explanations Johnson gave at the May
26, 2010 meeting with the Borough, Johnson gave only one excuse to the District
Justice and in his letter to the District Attorney’s office – that he had missed the
hearing “because he was home sick.”6 R.R. at 657a (emphasis added). That
representation was false. 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. Consequently, the trial court erred when it
ignored the Commission’s findings based on the record evidence, and substituted its
determination for that of the Commission.
The Majority also concludes that Charge 4 – regarding the draft letter to
the District Attorney – could not be sustained because “[a] ‘statement[]’ . . . must be
conveyed[[,]”7 and the draft letter was never sent. Majority Op. at 20. Importantly,
6
Johnson testified that he told Chief McDyre “that [he] had already met with [the District
Justice] and explained to him that [he] was sick is the reason that [he] had told him for missing
court on that date.” R.R. at 285a.
7
The Majority provides no legal authority for this statement. Although it is true that “in
order for defamation to occur in the form of either libel or slander, the defamatory statement must
be published or communicated to a third person.” Defamation is not at issue herein. Elia v. Erie
Ins. Exch., 634 A.2d 657, 660 (Pa. Super. 1993). Further, the fact that a “defamatory statement
must be . . . communicated” demonstrates that statements, although not defamatory, are indeed
statements even when they are not communicated. Id.Further, even if such “convey[ance]” or communication was necessary, Johnson’s
statement was “conveyed[,]” although not to the District Attorney. Majority Op. at 20. The
statement was “conveyed” to Chief McDyre when he reviewed the letter. Id.AEC - 8
Charge 4 was not that Johnson made a false statement to the District Attorney.
Instead, Charge 4 was that Johnson “prepared a document to the District Attorney’s
office in which [he] falsely stated the reason [he] had missed a preliminary hearing
and [he] requested ‘re-arrest’ permission based on the false statement.” R.R. at 757a
(emphasis added).8 There is absolutely no basis for this Court to conclude that the
charge had not been proven by substantial evidence. Thus, the trial court abused its
discretion by disregarding the Commission’s findings of fact that were supported by
substantial evidence and usurping the Commission’s duty by making its own findings
when it took no new evidence.
In sum, the trial court improperly re-weighed the evidence, substituted
its judgment for that of the Commission and, without taking any additional evidence,
made factual findings that were unsupported by substantial record evidence.9 Our
Supreme Court has specifically recognized the importance of deferring to local
agencies’ independent authority over employment decisions, and encouraging and
promoting “the vitality” of civil service commissions by avoiding the very same type
of second-guessing that has occurred herein. Johnson II, 146 A.3d at 713.
8
The Majority is correct that since the letter was never sent to the District Attorney’s office,
the Commission erred in its factual finding when it stated that the information was conveyed to the
District Attorney’s office: “[B]ecause [Johnson] 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. This was stated in [Johnson’s] own words.”
Finding of Fact No. 29; R.R. at 765a. Notwithstanding, such was harmless error because Charge 4
expressly pertained to preparing, rather than sending the letter with false statements.
9
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,” 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 at 451.
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I would therefore hold that the trial court erred by modifying the
Commission’s determination which is supported by substantial record evidence.
___________________________
ANNE E. COVEY, Judge
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