HomeMy WebLinkAbout04-1346THOMAS L. DAY, JR.,
Petitioner
VS.
CIVIL SERVICE COMMISSION OF
THE BOROUGH OF CARLISLE,
Respondent
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
NO.
PETITION FOR REVIEW AND REQUEST FOR HEARING REGARDING
POSSIBLE IMPROPER CONDUCT OF RESPONDENT COMMISSION AND
REQUEST FOR ACCEPTENCE OF ADDITIONAL EVIDENCE
AND NOW this 26 day of March, 2004, comes Petitioner, Thomas L. Day, Jr., by
and through his attorney, Joseph D. Buckley and Petitions that this Honorable Court
pursuant to review the determination of the Respondent Civil Service Commission and
further that this Court conduct a hearing into the conduct of the Civil Service
Commission and accept additional evidence relating to the Carlisle Police Association
based on the following:
A. Petition for Review (In the Nature of an Appeal)
1. This court has jurisdiction over this matter pursuant to the Local Agency Law
2 Pa. C.S. Section 572 and the Judicial Code 42 Pa. C.S. Section 933.
2. Petitioner is an adult citizen currently residing at 845 Baltimore Pike,
Gardners, Cumberland County, Pennsylvania 17324. Respondent is a duly
constituted local agency with offices located at 53 West South Street,
Carlisle, Cumberland County, Pennsylvania 17013.
3. At all times relevant to this petition, Petitioner was a uniformed police officer
employed by the Borough of Carlisle.
4. By letter dated May 9, 2003, Petitioner was dismissed as a police officer by
the Borough Council of Carlisle Borough for statements made to police
union members at or following a union meeting.
5. On May 9, 2003, Petitioner appealed the Borough's decision to the
Respondent, the Borough's Civil Service Commission.
6. On March 1, 2004, following various hearings and arguments, the
Respondent issued its decision affirming Petitioner's dismissal from the
Carlisle Police Department. (Copy attached as Exhibit "A")
7. The adjudication of the Respondent violated the constitutional rights of the
Petitioner, including, but not limited to:
a. Due Process Rights - Open Hearing- Respondent over the
repeated objections of Petitioner closed the hearing in this
matter to the public violating the Fourteenth Amendment to the
United States Constitution, the Constitution of this
Commonwealth and the laws of this Commonwealth
b. Due Process Rights - Fair Hearing by Impartial Tribunal - The
conduct of the Respondent and its agents during and
throughout the hearing evidenced its partiality and hostility in
that its members and attorney engaged in such conduct as
heated, argumentative questioning of Petitioner and his
witnesses and constantly interrupted Petitioner's presentation
of his cross examinations and examinations of witnesses in a
manner more characteristic of a prosecutor than a neutral,
detached and impartial decision maker in violation of the
Fourteenth Amendment to the United States Constitution.
c. Due Process Rights - Fair Hearing- Sequestration of Witness
Denied- Although the Commission ruled that all witnesses
were to be sequestered, over objection of Petitioner, the
Respondent permitted the Borough's Chief of Police to sit and
listen to witness's testimony prior to giving his own testimony
on the same subject matter in violation of Petitioner's rights
pursuant to the Fourteenth Amendment to the United States
Constitution.
d. Due Process Rights - Fair Hearing by Impartial Tribunal- It is
believed and therefor averred that the attorney working for the
Commission was hired not by the Respondent but by the
Borough of Carlisle and was having ex parte communications
with agents of the Borough of Carlisle prior to and during the
course of the hearings and attempted to steer the hearing in
favor of the Borough, one of the adversaries in the hearing in
violation of the Fourteenth Amendment to the United States
Constitution.
e. Due Process Rights - Recusal of Members- During the hearing
in this matter the Borough either intentionally or inadvertently
provided the Respondent and its members with eighteen
documents which it did not introduce into evidence at the
hearing which were read and reread by the members; the
material may have had an adverse effect and biased
Respondent against the Petitioner; Petitioner was not permitted
to question the members as they were only questioned by their
selected attorney. By failing to recuse themselves Respondent
violated Petitioner's right to a fair hearing before an unbiased
Commission pursuant to the Fourteenth Amendment to the
United States Constitution.
f Due Process Rights - Opportunity to Know the Claims of the
Opponent- Petitioner received an official notice of the charges
against him which lead to his dismissal from the Borough of
Carlisle and formally answered those charges and filed the
same with the Respondent; however during the course of the
hearing the Respondent and its attorney, over repeated
objections, continually questioned Petitioner and sought
evidence from the Borough of Carlisle on alleged charges and
facts outside the scope of the official charges in violation of the
Fourteenth Amendment to the United States Constitution.
g. Free Speech - Petitioners alleged conduct was a private
conversation with members of his union during and following a
union meeting and were made following repeated questions
from union members; the statements made were allegations of
possible police misconduct regarding matters of grave public
importance and were thus protected public speech under the
First Amendment to the United States Constitution.
h. Free Speech - Petitioners alleged conduct was a private
conversation with members of his union during and following a
union meeting and were made following repeated questions
from union members; the statements made were allegations of
possible police misconduct regarding matters of union concern
and were thus protected union speech under the First
Amendment to the United States Constitution, the Constitution
of this Commonwealth and the laws of the Commonwealth.
8. The adjudication was not in accordance with the laws of this Commonwealth,
including, but not limited to:
a. The Respondent violated the Commonwealth's Sunshine Act in
that it refused over repeated requests of petitioner to hold the
hearing in his dismissal in public, it closed all hearings to all
persons, including members of Petitioner's immediate family.
b. The Respondent did not take into account the labor laws of this
Commonwealth relating to the restraining the right of union
members by interfering with the exercise of union rights and
interfering with the administration of any labor organization.
c. Even though the Borough Police Department admitted that it
did not follow its written rules and regulations and arbitrarily
enforced or followed its written rules relating to the
investigation of alleged police misconduct, the Respondent
refused to take into account Petitioner's duties to follow the
rules and the Departments failure to so follow them.
d. The Respondent only sequestered Petitioner's witnesses and
allowed the Borough's chief witness to hear the testimony of
others relating too the same information prior to giving his
testimony in violation of the laws of this Commonwealth
e. Respondent did not follow the proper standard of review as
required under the laws of this Commonwealth.
f Respondent went beyond the scope of the charges brought by
the Borough and permitted the Borough to introduce irrelevant
and prejudicial information against the Petitioner.
g. Respondent did not apply the proper legal definition of what
constituted "Conduct Unbecoming and Officer".
h. Respondent did not properly apply the legal definition of
Disobeyance of Orders to the facts of the case.
i. The penalty imposed on Petitioner was arbitrary, capricious,
unduly harsh and unreasonable in light of the circumstances
and the nature and seriousness of the alleged infraction.
9. The adjudication and hearings violated the Local Agency laws of this
Commonwealth including, but not limited to:
a. The Respondent closed the hearing to the public over the
objection of Petitioner.
b. The Respondent permitted hearsay testimony and used the
properly objected to hearsay testimony as the basis for its
findings of fact.
c. The Respondent and/or its members or attorney became biased
toward Petitioner prior to, or during the hearing based on ex
parte communications between the Respondent, its members or
its attorney with the Borough of Carlisle, its agents or its
attorney, failed to notify Petitioner of the communications and
thereafter failed to recuse themselves.
d. The Respondent permitted its attorney to act as a second
prosecutor against Petitioner, permitted the attorney to steer the
hearing away from relevant issues and permitted him to act not
as counsel to the Respondent but as an adversary against
Petitioner.
e. The Respondent refused to permit Petitioner to make an oral
argument at the close of the matter.
10. The adjudication and many of its findings of fact (including, but not limited
to 16, 27, 29,32, 38,40, 44, 46, 47, 52, 55, 58, 60, 61, 64, 65, 70, 71, 91, 97-
110) were not supported by substantial evidence.
11. The Adjudication and its conclusions of law (including, but not limited to 4-
9) were not supported by the findings of fact or by substantial evidence
WHEREFORE, Petitioner requests that the Court request the official record
from the Respondent, establish and set a briefing and argument schedule, review
the record and reverse the Respondent's decision, reinstate him to his former rank
with all back pay and privileges.
B. Additional Testimony
12. Pursuant to the Court's jurisdiction under the Local Agency Law 2 Pa.C.S.
753 and 754, Petitioner requests that the Court take additional testimony in
this matter based on the following:
a. Petitioner believes and therefore avers that the attorney used by the
Respondent was selected not by Respondent but by the Borough of
Carlisle and /or its agents.
b. Petitioner believes and therefore avers that there were verbal and written
ex parte communications prior to and during the Civil Service hearing
between agents of the Borough of Carlisle and the attorney chosen by the
Borough to represent the Respondent, which was never disclosed to
Petitioner and that such evidence needs to be placed in the record of this
case without which Petitioner would be further prejudiced.
c. Certain evidence relating to the conduct of meetings and membership of
the Carlisle Police Association (the union) was not permitted to be
introduced by Petitioner and additional evidence has arisen since the last
hearing which is relevant to the Petitioner's case.
WHEREFORE, the Petitioner requests that the Court set a hearing date take additional
evidence relating to the hiring by the Borough of Carlisle of the attorney it assigned to the
Commission and possible ex parte communications between the said attorney and agents
of the Borough of Carlisle prior to and during the hearing and further to take new
evidence relating to this matter. In the alternative, the Petitioner requests the Court
reverse the decision of the Respondent based on its conduct or hold a de novo hearing in
this matter as permitted under the law and that which the Court finds is fair and just.
Respectfully submitted
Jjph D. Bylckr'ey, Esquire
Supreme Court I.D. # 38444
1237 Holly Pike
Carlisle, PA 17013
(717) 249-2448
VERIFICATION
The undersigned, Thomas L. Day, Jr. , hereby certifies that the statements made in
the foregoing Petition for Review and Request for Additional Testimony Regarding
Possible Improper Conduct of Civil Service Commission and Acceptance of Additional
Evidence are true and correct to the best of his knowledge, information and belief.
It is understood that statements made herein are subject to the penalties of 18
Pa.C.S. Section 4904 relating to unsworn falsification to authorities.
Date: o?lo'vI ??jyyw
Thomas L. Day, Jr.
law
to to
BEFORE THE CIVIL SERVICE COMMISSION OF THE BOROUGH OF CARLISLE,
PENNSYLVANIA
IN THE MATTER OF Decided: March 1, 2004
THOMAS L. DAY
INTRODUCTION
This is an appeal from the May 8, 2003 decision of the Carlisle Borough Council
to terminate the employment of Thomas L. Day ("Day") as a police officer with the Carlisle
Borough Police Department. The appeal was taken pursuant to Section 903 of the Carlisle
Borough Civil Service Commission's Rules and Regulations. The case was heard by the
Commission's members, BENJAMIN FRANCAVILLA, and MARY CAROL HOLLIS.
The Commission held a hearing on July 14, 2003, August 11, 2003, August 12,
2003, August 25, 2003, October 6, 2003, and October 8, 2003. During the hearing, the
Commission heard from eight (8) witnesses on behalf of the Borough, six (6) witnesses on behalf
of Day, and one (1) witness called by the Commission. After considering the testimony and
exhibits received during the six days of the hearing, the Commission makes its determination as
set forth below.
BACKGROUND
Appellant Thomas L. Day ("Day") served as a Carlisle Borough Police Officer for
approximately fifteen (15) years. (Exhibit B-1 at 6)1. On May 8, 2003, the Carlisle Borough
Council ("Council") voted to terminate Day's employment, based on the recommendation of
Chief Stephen L. Margeson ("Margeson"), and the concurrence of Mayor Kirk R. Wilson.
(Exhibit C-1). As the basis for its decision, Council cited the charges outlined in Margeson's
May 6, 2003 letter to Day, namely, that Day disobeyed orders and engaged in conduct
unbecoming an officer. (Exhibit C-1).
On May 9, 2003, Day, through his counsel, requested a civil service hearing. (Exhibit C-
2). The first day of the hearing was on July 14, 2003, at which time the Commission addressed
several preliminary procedural matters. First, Commission member William Duncan decided to
recuse himself from the proceedings due to his representation of members of the Police
Department, Borough Administration, and Borough Council, some of whom could be called as
witnesses. (Notes of Testimony, 7/14/2003 at 7).2 Second, the Commission announced its
decision to close the hearing to the public. (N.T. 7/14/2003 at 8-10). In rendering this decision,
the Commission considered letter briefs previously requested from and submitted by the parties3.
(Exhibits C-7, C-8, and C-9). Finally, as a result of its decision to close the hearing, the
I Appellant's exhibits will be cited hereinafter as "Exhibit A-[exhibit number]"; the Borough's
exhibits as "Exhibit B-[exhibit number]"; and Council's exhibits as "Exhibit C-[exhibit
number]."
2 The transcript of the hearing will be cited hereinafter as "N.T. [date of testimony] at [transcript
page number]."
3 The Commission also accepted a letter brief from Jason P. Kutulakis, an attorney for one of the
Borough's police officers. (Exhibit C-9).
Commission found the Appellant's request for sequestration of witnesses moot. (N.T. 7/14/2003
at 8).
During the third day of the hearing, an additional issue arose after the Commission
discovered that the Borough had inadvertently attached eighteen pages of unnecessary
documents to Exhibit B-7, which had been admitted into evidence on July 14, 2003. Counsel for
Day argued that the erroneously admitted documents were highly prejudicial to his client, and
requested that the members of the Commission recuse themselves based upon their admission
that they had read the documents. (Exhibit C-16 at 2). The Commission members stated on the
record, their belief that they were able to render an impartial and unbiased decision on Day's
appeal, and deferred ruling on the formal Motion to Recuse until testimony was completed and a
decision rendered. The Commission's decision on these procedural issues, as well as the
substantive and factual issues implicated in this case are addressed more fully below.
FINDINGS OF FACT
Based upon the documentary and testimonial evidence presented before the Commission
during the hearing, the Commission hereby finds as follows:
Carlisle is a Borough subject to the provisions of the Borough Code, 53 P.S. §§
46171 et se .
2. Pursuant to the Borough Code and the Civil Service Regulations enacted by
Carlisle Borough, a police officer may only be removed for specific reasons set forth by the
legislature. These reasons are:
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(1) physical or mental disability affecting the officer's ability to perform the
essential functions of the job, in which case an officer will be honorably
discharged from service;
(2) neglect or violation of any official duty;
(3) violation of any law of the Commonwealth which provides that such
violation constitutes a misdemeanor or felony;
(4) inefficiency, neglect, intemperance, disobedience of orders or conduct
unbecoming an officer;
(5) intoxication while on duty; or
(6) engaging or participating in or conducting of any political or election
campaign other than the officer's exercise of the right of suffrage.
53 P.S. § 46190; Section 901 of the Carlisle Borough Civil Service Rules & Regulations.
3. The Borough Code vests the Borough Council with the statutory authority to
terminate Borough police officers. 53 P.S. §46121.
4. In 1998, Detective David Smith lived in an apartment in North Middleton
Township. (N.T. 7/14/2003 at 209). Smith and his then-girlfriend, Jill Arnold ("Jill Darr" or
"Darr") were involved in a domestic dispute during which the North Middleton police were
called. (N.T. 7/14/2003 at 210).
On an unknown date prior to Day's termination, Smith was working with the
Cumberland County Drug Task Force and was accused of not providing $100.00 to a
confidential informant. (N.T. 811/2003 at 374). Police Chief Stephen L. Margeson
("Margeson") asked the District Attorney's office to investigate that matter, and the investigation
revealed that the informant had signed a receipt indicating that he received the money. (N.T.
8/12/2003 at 375).
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6. On January 3, 2002, Day attended an all-day meeting for police supervisors, held
by Margeson, in Shaffer Park. (N.T. 7/14/2003 at 237-38). The purpose of the meeting was team
building and management training for the ranking members of the Carlisle Police Department.
(N.T. 7/14/2003 at 237).
At the Shaffer Park meeting, Margeson reviewed the Department's mission
statement, and discussed how to handle disagreements and complaints. The Chief specifically
informed attendees that they were not to openly ridicule or complain about others, but to take
complaints through the proper channels, and that contrary actions would be considered conduct
unbecoming an officer. (N.T. 7/14/2003 at 77, 237-38).
8. The Carlisle Police Department is one of thirty-eight law enforcement agencies in
the greater Harrisburg area that utilizes a police computer information system called Metro
Operations ("Metro system.") (N.T. 7/14/2003 at 115-116).
9. Officers access the Metro system by inputting a user identification number and a
password. (N.T. 7/14/2003 at 119).
10. The Metro system contains information regarding dispatches, warrants, citations,
and parking tickets. (N.T. 7/14/2003 at 116).
11. The information on the Metro system is shared with participating agencies, and is
available to participants twenty-four (24) hours a day. (N.T. 7/14/2003 at 116).
12. There are two levels of authorization on the system: the dispatch section and the
field report section. (N.T. 7/14/2003 at 129).
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13. The dispatch entry is the first to be inputted. (N.T. 7/14/2003 at 120). If the
circumstances surrounding an incident require a field report, that entry is made afterward on
another segment of the system. (N.T. 7/14/2003 at 120).
14. Changes may be made to the Metro system dispatch entries to correct
misspellings or mistakes in narratives, or to add supplementary information or text. (N.T.
7/14/2003 at 117).
15. Dispatch entries on the Metro system are not available to the general public. (N.T.
7/14/2003 at 187-89).
16. The ability to delete information from Carlisle Borough field reports in the Metro
system is restricted for members of the Carlisle Police Department. (N.T. 7/14/2003 at 120).
While anyone in the department may delete the items in a dispatch entry, only lieutenants may
delete items entered into field reports. (N.T. 7/14/2003 at 121).
17. The log file of the Metro system records when deletions are made from an entry
in the system. The log file is a master record that indicates how a file appeared before and after
changes. (N.T. 11/14/2003 at 123).
18. On August 19, 2002, Matthew Walters, son of Carlisle Police Lieutenant Barry
Walters ("Lt. Walters"), was stopped by Officer Mark L. Brewbaker ("Brewbaker") for running a
stop sign. (N.T. 7/14/2003 at 129-30, 173-176, 182; 8/11/2003 at 342; 8/12/2003 at 644).
Matthew Walters's name was input into the Metro system by Brewbaker at 9:19 p.m.. (N.T.
7/14/2003 at 129-30; Exhibit B-2).
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19, Sergeant Michael J. Dzezinski ("Dzezinski") was on duty as patrol commander
when Brewbaker stopped Matthew Walters. (N.T. 7/14/2003 at 173).
20. Brewbaker called Dzezinski to tell him about the stop, and asked how he should
handle the situation. (N.T. 7/14/2003 at 173).
21. Dzezinski told Brewbaker to standby and wait for Dzezinski to call him back.
(N.T. 7/14/2003 at 174).
22. Dzezinski called Lieutenant Lt. Walters at home to discuss the matter and then
told Brewbaker to send Matthew Walters home with a verbal warning. (N.T. 7/14/2003 at 174,
176, 182).
23. Dzezinski deleted Matthew Walters's name from the Metro log without
instruction from Lt. Walters because Matthew was getting ready to go into the Marines. (N.T.
7/14/2003 at 176-77).
24. During the fall of 2002, Day researched the union by-laws of other police
departments, and drafted union by-laws for the Carlisle Police Association. (N.T. 10/6/2003 at
976).
25. In November 2002, the Carlisle Police Association adopted new union by-laws.
(N.T. 10/6/2003 at 976). Afterward, some of the younger men in the department decided that
Day should be one of their Union officers. (N.T. 10/6/2003 at 976).
26. Day was elected treasurer of the Carlisle Police Association on December 18,
2002. (N.T. 8/12/2003 at 610). He took office on January 3, 2003. (N.T. 10/6/2003 at 1173).
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27. On either January 22, 2003 or January 23, 2003, Day approached Sergeant
Michael J. Guido ("Guido"), Day's patrol sergeant, about allegations made recently by Jill Darr
against Detective Smith. (N.T. 10/6/2003 at 1146).
28. Guido informed Day that he knew about a prior domestic incident, but that he did
not know about any guns being involved. (N.T. 10/6/2003 at 1146). Guido told Day that once
Margeson returned from vacation, Guido would talk to Margeson about it. (N.T. 10/6/2003 at
1147).
29. In late January 2003, Day, police dispatcher Robin Lynn Burns ("Bums"),
Patrolman John H. Haggerty ("Haggerty"), and Guido engaged in a conversation in the
communications room4. (N.T. 7/14/2003 at 40, 67; 8/25/2003 at 866).
30. The conversation between Day, Burns, Haggerty and Guido included a discussion
on the conduct of the Department's detectives, and how they would soon become more
accountable for their actions. (N.T. 7/14/2003 at 40, 67; 10/6/2003 at 1100, 1101).
31. During the conversation in the communications room, Day told the others in a
loud voice that Smith was involved with stealing drug money from an evidence locker, falsifying
time sheets, and using his gun during a domestic dispute. (N.T. 7/14/2003 at 44, 67-68, 75; N.T.
10/6/2003 at 1073, 1092-93).
4 Throughout the hearing on this matter, different witnesses used different terms to describe the
same area inside of the police department. The Commission will hereinafter refer to that area
as the "communications room."
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32. Day pointed his finger towards Margeson's office and said that he, indicating
Margeson, knew about Smith's actions and covered it up. (N.T. 7/14/2003 at 45, 69).
33. Day's allegations against Margeson upset Guido, and Guido felt that if they were
true, it would be a career-ending fact for himself. (7/14/2003 at 69, 92, 105).
34. Day's allegations made Burns doubt the integrity of Chief Margeson and the
Lieutenants, and made her uncomfortable. (7/14/2003 at 46-47).
35. In order to end the public conversation, Guido ordered Day to come into his
office, told Day to put his allegations in writing, and said that he would talk to Margeson. (N.T.
7/14/2003 at 69). Day told Guido that the information about the gun came from Jill Darr, the
information about the money came from either Pfahl or Kiser, and the information about the time
schedules came from Detective Jeffrey D. Kurtz or Corporal Michael T. Clepper. (N.T.
7/14/2003 at 111).
36. After Margeson returned from vacation, Guido talked with Margeson in the
latter's office, and related Day's allegations. (N.T. 7/14/2003 at 206). Margeson told Guido to
have Day put it in writing, and initiated an investigation of Smith. (N.T. 7/14/2003 at 206).
37. The Chief had concerns about the way Day was reported to have discussed the
matter. (N.T. 7/14/2003 at 207).
38. At the time Day's allegations were brought to his attention, Margeson was aware
that the District Attorney had investigated but cleared Smith of the incident involving drug
money, and that Lt. Walters had investigated, and determined as unfounded, the allegation that
Smith had padded his timesheets. (N.T. 7/14/2003 at 208, 210).
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39. Margeson was also aware of a domestic incident several years earlier, between
Darr and Smith, but it was not reported to him that Smith had threatened Darr with a gun. (N.T.
8/11/2003 at 323). Margeson had interviewed Smith in 1998, and Smith did not indicate that he
had threatened Darr, blocked her door with a chair, or pointed a gun at her. (N.T. 8/11/2003 at
326).
40. Margeson had reviewed in 1998, the police report prepared by the North
Middleton Township Police on the Smith/Darr incident. The report did not contain any
information about a gun. (N.T. 8/25/2003 at 929). Additionally, Margeson reviewed in 1998, the
dispatch report from County Radio, which did not mention Darr was threatened with a gun. (N.T.
8/25/2003 at 929-30).
41. Margeson thought that the communications room allegations Day made in
January 2003 concerning Smith and Darr involved a new, more recent incident. (N.T. 7/14/2003
at 212).
42. On February 10, 2003, Day wrote a memorandum to Margeson regarding his
allegations against Smith. (N.T. 8/11/2003 at 338; 10/6/2003 at 990). Day did not include in his
memorandum, any allegation about Smith and the drug money. (N.T. 10/6/2003 at 1098).
43. Margeson conducted an investigation of Day's allegations, which included
double-checking the information regarding Smith and the drug money, time sheets, and the Darr
domestic incident. (N.T. 7/14/2003 at 211).
44. As part of his investigation, Margeson met with Day on March 19, 2003. (N.T.
8/25/2003 at 855). Present were Margeson, Day, and Guido. (N.T. 10/6/2003 at 1105). They
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discussed Day's allegations that Smith misrepresented his hours of work, took drug money, and
threatened Darr with a gun. (N.T. 8/25/2003 at 856). The purpose of this meeting was to discuss
what Day had written in his February 10, 2003 memorandum to Margeson. (N.T. 10/6/2003 at
1105). Day admitted at the meeting that he had made the statements in the communications
room, and that he blew his top. (N.T. 8/25/2003 at 930).
45. On March 28, 2003, Margeson again met with Day. (N.T. 8/25/2003 at 857).
Also present were Pfahl and Sergeant Kent McCoy, who served as Day's union representative.
(N.T. 8/25/2003 at 857). Margeson informed Day that a misconduct investigation was initiated
against him, and that, if the allegations were sustained, Day could potentially face discipline.
(Exhibit B-5).
46. At this March 28, 2003 meeting, Day again admitted that he "blew up" in front of
the others present in the communications room. (N.T. 8/11/2003 at 479; 10/6/2003 at 1072). He
also admitted that he told the others that Smith held a gun to Darr's head, that Smith had
submitted materially incorrect time records and that Smith mishandled drugs and/or money from
an investigation. (N.T. 8/11/2003 at 479-80).
47. Margeson sent Day a letter on April 23, 2003, placing him on Administrative
Leave with pay pending action by the Borough Council at its May 8, 2003. (Exhibit B-4, B-5).
48. On April 24, 2003, Day again met with Margeson, McCoy, and Pfahl. (N.T.
7/14/2003 at 218, 220). The purpose of this meeting was to explain the charges against Day.
(N.T. 7/14/2003 at 220). Also present were Pfahl, who acted as another Department
representative, and McCoy, who served as Day's union representative. (N.T. 7/14/2003 at 219).
49. Margeson gave Day a letter dated the same day, which explained that Margeson
concluded that Day engaged in conduct unbecoming an officer, disobedience of orders, and
neglect or violation of official duties as a result of Day's statements in the communications room
accusing the Chief and other ranking officers of misconduct by covering up allegations against
Smith. (Exhibit B-5). Margeson told Day that he recommended a demotion and a three day
suspension for Day's misconduct. (Exhibit B-5).
50. Margeson's April 24, 2003 letter informed Day that "any repetition of this
behavior or other misconduct on your behalf will result in dismissal." (Exhibit B-5).
51. Margeson also verbally warned Day that, in the future, he should use caution in
what he says. (N.T. 7/14/2003 at 220, 220).
52. In recommending discipline for Day's conduct, Margeson considered as a factor
that Day never acknowledged that it was wrong to make the communications room allegations
in front of subordinates. (N.T. 8/11/2003 at 491). Margeson stressed that the people present, and
the place and manner in which Day made his accusations were more significant than whether the
allegations were true or false. (N.T. 8/11/2003 at 491).
53. On April 27, 2003, Day attended a regularly scheduled Carlisle Police
- Association meeting while he was on administrative leave. (N.T. 8/11/2003 at 388; 10/6/2003 at
1003). The meeting was held on the second floor in the conference room of the Union Fire
Company. (N.T. 10/06/03 at 1004).
54. At the Union meeting, Day requested the financial support of the Association for
potential, future disciplinary action based on Margeson's April 24, 2003 letter. (N.T. 8/12/2003
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at 611; 10/8/2003 at 1206). Since loud arguments arose on the matter of possible discipline, the
issue was tabled because Day had not yet been disciplined. (N.T. at 10/6/2003 at 1007, 1114).
55. Afterward, McCoy, the Association President, drew the meeting to a close, and
on his way out of the room, reminded those still present to turn out the lights. (N.T. 8/12/2003 at
642; 10/8/2003 at 1207).
56. Patrolmen Daniel F. Parson ("Parson"), Adolfo Heredia ("Heredia"), and
Brewbaker approached Day and told him that they could not decide how to vote on awarding
him Union money to fight the discipline, because they did not know what happened. (N.T.
7/14/2003 at 157; 8/12/2003 at 613-14; 10/8/2003 at 1208).
57. Day indicated that there were fellow officers present in front of whom Day did
not want to discuss things, and Parson, Heredia, and Brewbaker waited with Day until those
individuals left the room. (N.T. 8/12/2003 at 614; 10/8/2003 at 1208).
58. Day was upset at this time, after the Union meeting, and he was talking "real
fast." (N.T. 10/8/2003 at 1212).
59. Day told Parson, Heredia, and Brewbaker, his subordinates in the police
department, that he was to be disciplined over a conversation that he had in the communications
room in front of Haggerty, Guido, and Bums. (N.T. 10/8/2003 at 1208-09, 1278-79).
60. Day repeated the same allegations that he had made in the communications room
about Smith not responding to a burglar alarm, and about a civilian complaint that Smith put a
gun to a woman's head. (N.T. 10/8/2003 at 1209). Day again said that nothing was done about
the civilian complaint. (N.T. 7/14/2003 at 142; 10/8/2003 at 1210).
-13-
76. Margeson stopped the interview on May 5, 2003 in order to contact the
individuals that Day claimed could corroborate Day's allegation about Lt. Walters. (N.T.
8/11/2003 at 409).
77. Margeson investigated the Matthew Walters incident involving the deletion of his
name from the Metro system. (N.T. 8/11/2003 at 436).
78. Lieutenant Douglas E. Pfahl ("Pfahl") discovered Matthew Walters's name had
been deleted from the Metro files. (N.T. 8/11/2003 at 436).
79. Margeson interviewed Dzezinski, who admitted that he deleted Matthew
Walters's name from the Metro file. (N.T. 8/11/2003 at 442). Margeson directed Dzezinski to
write a memorandum detailing his actions. (N.T. 8/11/2003 at 443).
80. Robert L. Morrison is the director of Metro police operations. (N.T. 7/14/2003 at
115).
81. Morrison received verbal and written requests from Margeson to check the log
file to determine whether Matthew Walters's name had been deleted from any report or dispatch
files. (N.T. 7/14/2003 at 122).
82. Morrison concluded that Matthew Walters's name was not deleted from any field
report files, but that there was one deletion from a dispatch file. (N.T. 11/14/2003 at 123).
83. Morrison noted that a dispatch file with Matthew Walters's name was deleted on
August 19, 2003, by an individual who's identification number was "MJDL" (N.T. 7/14/2003 at
124).
-16-
84. Morrison conveyed his findings to Pfahl by letters dated May 2, 2003 and May 6,
2003. (Exhibit B-2). In his May 6, 2003 letter, Morrison reported that Lt. Walters did not delete
any records with Matthew Walters's name between January 1, 2003 and April 30, 2003. (N.T.
7/14/2003 at 123).
85. Margeson drew no conclusions as to the conduct of Lt. Walters in the relation to
Matthew Walter's name being deleted from the Metro system. (N.T. 8/11/2003 at 436).
86. On May 6, 2003, Margeson notified Day that he was recommending Day's
dismissal to the Mayor because of conduct unbecoming an officer and disobedience of orders.
(Exhibit B-6). Margeson explained to Day that the Mayor concurred in his recommendation and
was likewise going to recommend Day's termination to Borough Council. (Exhibit B-6).
87. The May 6, 2003 notice cited Day's April 27, 2003 conversation and his
allegation that Lt. Walters deleted or altered the official Carlisle Police Department
computerized records as the basis for Margeson's recommendation. (Exhibit B-6).
88. The May 6, 2003 notice also referenced Margeson's April 24, 2003 letter to Day,
wherein Margeson warned "that any repetition of this behavior or other misconduct on your
behalf will result in dismissal. (Exhibit B-5).
89. At the Council meeting on May 8, 2003, prior to the vote, Margeson
recommended that Borough Council terminate Day's employment. (N.T. 7/14/2003 at 232-34;
Exhibit B-7 at 13).
-17-
90. Prior to the Borough Council's vote, the Mayor stated his agreement in Day's
dismissal, and Council voted to terminate Day's employment. (N.T. 8/1/2003 at 506; Exhibit B-7
at 13).
91. Also prior to the vote, the attorney for Day, Joseph D. Buckley, read a prepared
statement reasserting the allegations first raised by Day in the communications room in January
2003. (Exhibit B-7 at 13).
92. Carlisle Borough Council Vice-President Kenneth E. Gossert sent Day a notice of
termination dated May 9, 2003. (Exhibit C-1). The notice explained that the Borough Council
voted to terminate Day's employment based on its determination that Day disobeyed orders and
engaged in conduct unbecoming an officer. (Exhibit C-1).
93. On May 9, 2003, Day advised the Commission that he wished to appeal his
termination, and requested a Civil Service hearing pursuant to §903 of the Carlisle Borough Civil
Service Rules and Regulations, and Section 1191 of the Borough Code. (Exhibit C-2).
94. On July 11, 2002, Day filed with the Commission, a written answer to the charges
filed against him. (Exhibit C-3).
95. The Civil Service Commission presided over a hearing held on July 14, 2003,
August 11, 2003, August 12, 2003, August 25, 2003, October 6, 2003, and October 8, 2003,
during which the Commission received documentary evidence and testimony from witnesses
under oath.
96. During the hearing, the Commission received testimony from the following
witnesses: 1) Robin L. Burns; 2) Michael J. Guido; 3) Robert L. Morrison; 4) Daniel F. Parson,
-18-
Jr.; 5) Michael J. Dzezinski; 6) Stephen L. Margeson; 7) Susan D. Armstrong; 8) Douglas E.
Pfahl; 9) Mark L. Brewbaker; 10) Michael T. Clepper; 11) Jeffrey D. Kurtz; 12) Debra Daniel;
13) Thomas L. Day, Jr.; and 14) Adolfo Heredia.
97. The Commission finds the testimony of Robin L. Bums regarding the
conversation in the communications room in January 2003 to be credible and accepts the same.
98. The Commission finds the testimony of Michael J. Guido to be credible and
accepts the same.
99. The Commission finds the testimony of Robert L. Morrison to be credible and
accepts the same.
100. The Commission finds the testimony of Daniel F. Parson, Jr. to be credible to the
extent that it does not conflict with the testimony of Adolfo Heredia, and accepts the same.
101. The Commission finds the testimony of Michael J. Dzezinski to be credible and
accepts the same.
102. The Commission finds the testimony of Stephen L. Margeson to be credible and
accepts the same.
103. The Commission finds the testimony of Susan D. Armstrong to be credible and
accepts the same.
104. The Commission finds the testimony of Adolfo Heredia to be credible and accepts
the same.
-19-
105. The Commission finds the testimony of Douglas E. Pfahl to be credible and
accepts the same.
106. The Commission finds the testimony of Mark L. Brewbaker to be credible to the
extent it does not conflict with the testimony of Adolfo Heredia, and accepts the same.
107. The Commission finds the testimony of Michael T. Clepper to be credible to the
extent that it does not conflict with that of Stephen L. Margeson and accepts the same to the
extent that it concerns matters relevant to the charges before the Commission.
108. The Commission finds the testimony of Jeffrey D. Kurtz to be credible to the
extent that it does not conflict with that of Stephen L. Margeson or Michael J. Guido, and accepts
the same to the extent that it concerns matters relevant to the charges before the Commission.
109. The Commission finds the testimony of Debra Daniel to be credible to the extent
it concerns matters relevant to the charges before the Commission, and accepts the same.
110. The Commission finds the testimony of Thomas L. Day not credible to the extent
it conflicts with Robin L. Burns, Michael J. Guido, Daniel F. Parson, Jr., Stephen L. Margeson,
Adolfo Heredia, Douglas E. Pfahl, and Mark L. Brewbaker.
DISCUSSION
A. PROCEDURAL ISSUES
Prior to addressing the merits of this case, the Commission will address several
procedural rulings that it made in order to provide a complete context for its decision.
-20-
1. Recusal of Commissioner William Duncan
On July 14, 2003, the first day of the hearing in this matter, Commission member
William Duncan recused himself from the proceedings, due to his representation of members of
the Police Department, Borough Administration, and Borough Council, one or more of whom
could have been called as a witness. (N.T. 7/14/2003 at 7). The Commission raised the question
of recusal prior to the initiation of proceedings, and neither party objected to Mr. Duncan's
involvement in this case. (N.T. 7/14/2003 at 8). Nonetheless, Mr. Duncan did not participate in
any of the proceedings related to Day's appeal, apart from the original conference call held with
members of the Commission on May 23, 2003, and he has not participated in the decision set
forth below. (N.T. 7/14/2003 at 7).
2. Denial of Appellant's Request for an Open Hearing and Sequestration of
Witnesses
Before the Commission held hearings on the instant matter, it requested the parties to
submit letter briefs addressing their respective positions on whether the hearings should be open
or closed to the public. (Exhibit C-6). On July 3, 2003, the Borough submitted its letter brief
which argued that although the Pennsylvania Sunshine Act, 65 P.S. § 701, e/ seq. permitted an
employee to request a public hearing, the law was silent as to whether the hearing body must
grant that request. (Exhibit C-7). Consequently, the Borough asserted that the decision to hold
an open or closed hearing was within the sound discretion of the Commission. (Exhibit C-7 at 2).
On July 9, 20035, Day, through his counsel, submitted a letter brief indicating his
position that the Sunshine Act provided Day with the exclusive right to select an open or closed
hearing, and that a closed hearing would adversely affect Day's rights. (Exhibit C-8 at 2). On the
5 Exhibit C-8 is dated June 9, 2003, but was received by the Commission on July 9, 2003. The
Commission assumes it was intended to be dated July 9, 2003.
-21-
same date, Day, through his counsel, also made a formal request for an open hearing. (Exhibit C-
8 at 3). Similar written requests were submitted on August 11, 2003, August 12, 2003, August
25, 2003, and October 6, 2003. (Exhibits C-8, C-13, C-14, C-15, C-25).
After having read the submitted letter briefs and following discussion on the matter, the
Commission announced its decision to conduct closed hearings in this case. (N.T. 7/14/2003 at
8). The Commission concluded that under the Pennsylvania Sunshine Act, 65 Pa. C.S.A. §701
et. seg., it had discretion to decide whether or not to open its hearing to the public. See Schmidt
v. Borough of Baldwin, 82 Pa. Cmwlth. 580, 477 A.2d 572 (1984); Preston v. Saucon Vallev
Sch. Dist., 666 A.2d 1120 (Pa. Cmwlth. 1995); Mirror Printing Co. v. Altoona Area Sch. Bd.,
148 Pa. Cmwlth. 168, 609 A.2d 917 (1992). As a result of this decision, the Commission
determined that the issue of sequestration of witnesses was moot, and it therefore denied Day's
request to sequester witnesses as moot. The Commission maintained its position to keep the
hearings closed in response to Day's attorney's four subsequent requests.
3. Day's Motion to Recuse Members of the Civil Service Commission
On August 25, 2003, Day, through his counsel, submitted a motion, requesting that the
members of the Commission recuse themselves from Day's appeal. Day's Motion to Recuse was
based upon the Commission's review of eighteen (18) pages of documents that the Borough
erroneously attached to Exhibit B-7, and submitted as evidence at the August 12, 2003 hearing
on this matter. (Exhibit C-16). Day argued that the documents were highly prejudicial to his
case, and the members of the Commission were unable to remain impartial or unbiased as a
result of their having reviewed the documents. (Exhibit C-16 at 2). In order to ensure a complete
record in this matter, the contested eighteen (18) pages were subsequently marked as Exhibit C-
18.
-22-
As indicated previously on the record, the members of this Commission find that they are
able to render an impartial and unbiased decision in this appeal despite having reviewed the
contested eighteen pages. (N.T. 8/12/2003 at 718-721). One of the duties of any Civil Service
Commission is to rule on the admissibility of evidence. Under Day's counsel's legal argument,
any time a Civil Service Commission considers and then rejects a document as inadmissible, that
Commission is irrevocably tainted and can no longer sit and continue to hear the case. Common
sense requires us to reject this argument. Moreover, counsel for Day has identified no
substantive basis related to the content of these eighteen pages on why the Commission's review
of the contested documents would disqualify them from continuing to hear this case.
In addition, assuming arguendo that the members of the Commission were prejudiced by
the contested eighteen pages of documents, the Commission concludes that the Rule of Necessity
would preclude the members of the Commission from recusing themselves. See Stroudsburp,
Area Sch. Dist. v. Kelly, 701 A.2d 1000, 1003 (Pa. Cmwlth. 1997). The Rule of Necessity
provides that "when all members of a tribunal or so many that there is not a quorum are subject
to recusal, the tribunal must consider the case despite the personal interest or bias of its members,
because otherwise the agency could not carry out its duties and the litigants would be denied a
decision in the matter." Id. Accordingly, even if the Commission were prejudiced or biased by
the contested pages, it would nonetheless render a decision on the matter, and any perceived
issue of prejudice must be disposed of on appeal.
DECISION
The Borough had the burden of proving, by a preponderance of the evidence, that Day
engaged in the conduct for which he was terminated. Kleshchick v. Civil Service Commission
-23-
of the City of Philadelphia, 365 A.2d 700 (Pa. Cmwlth. 1976). The primary function of a
municipal Civil Service Commission is to determine whether the charges brought against an
officer are supported by the evidence. Brooks v. Civil Service Commission of Shaler Township,
755 A.2d 115 (Pa. Cmwlth. 2002); York Township Board of Commissioners v. Batty, 694 A.2d
395, 397 (Pa. Cmwlth. 1997); Hermann v. Civil Service Commission of Jenkintown, 84 Pa.
Cmwlth. 211, 478 A.2d 961 (Pa. Cmwlth. 1984). Once the Borough discharges its burden of
proving an officer engaged in the conduct for which he was disciplined, the Commission may not
modify the penalty imposed if the penalty is not otherwise prohibited, absent evidence that the
selection of the penalty was arbitrary, discriminatory, or an abuse of discretion. Borough of
Jenkintown v. Civil Service Commission of Jenkintown, 478 A.2d 941 (Pa. Cmwlth. 1984).
Day was terminated for conduct unbecoming an officer and for disobedience of orders,
pursuant to § 1190 of the Borough Code, 53 P.S. 46190. The Commission notes that although
undefined by the statute, "conduct unbecoming an officer" has been defined by the Courts to
include "conduct that adversely affects the morale and efficiency of the police force or tends to
destroy public respect for, and confidence in, the police force." Feliciano v. Borough of
Norristown, 758 A.2d at 297 (Pa. Cmwlth. 2000) citin Kazmarek v. New Bethlehem Borough
Council, 478 A.2d 514 (Pa. Cmwlth. 1984). Additionally, the Commission recognizes that a
written directive is not a prerequisite to finding an officer's conduct amounts to disobedience of
orders. Borough of Edgeworth v. Blosser, 672 A.2d 854, 857 (Pa. Cmwlth. 1996). As explained
in detail below, the Commission finds that the Borough met its burden and established that Day's
actions constituted both disobedience of orders and conduct unbecoming an officer.
Preliminarily, the Commission notes that the evidence offered with regard to Day's
January, 2003 conversation in the communications room with Guido. Burns, and Haggerty is
-24-
relevant to these proceedings, and, more importantly, that Day's conduct in this regard fell within
the grounds for termination. During the hearings on this matter, Day, through his counsel,
objected to testimony concerning the conversation in the communications room. (N.T. 7/14/2003
at 38, 65). Counsel for Day argued that it was irrelevant and outside the scope of the charges
before the Commission, as expressed in Margeson's notice of recommendation of dismissal,
dated May 6, 2003. (Exhibit B-6).
The Commission disagrees, and finds that the matter of Day's conversation in the
communications room was referenced in the charges against Day. This much is evident from
Margeson's notice to Day dated May 6, 2003, wherein Margeson stated:
When we met on April 24, 2003, I directed you to use caution in what you
said how you said it and who you said it to regarding actions that may be
taken against you. You were further advised, in writing, "that any
repetition of this behavior or other misconduct on your behalf will result in
dismissal."
Once again I am extremely disappointed that you would engage in such
conduct, especially after our April 24, 2003 meeting. Your actions on
April 27, 2003 were again detrimental to the good of the order of the
Police Department and in fact disruptive to the efficient operation of the
department. Your actions continued to undermine the Chief of Police and
the Chain of Command.
(Exhibit B-6). Margeson's May 6, 2003 letter was incorporated into the May 9, 2003 termination
letter sent to Day by Gossert. (Exhibit C-1). Therefore, the Commission concludes that Day
received proper notice of the charges against him and the underlying facts which the Borough
alleged supported those charges. See Township of Darby v. McCartney, 401 A.2d 401, 403 (Pa.
Cmwlth. 1979) (stating that written charges must "at least refer generally to the incident(s) that
form the factual basis of the charge."); Kovarik v. Borough of East Pittsburgh, 485 A.2d 529,
531 (Pa. Cmwlth. 1984) (same); Winschel v. Scott Township, 692 A.2d 637 (Pa. Cmwlth. 1997)
(finding detailed written advisements of misconduct in addition to notice citing statutory bases
-25-
for termination provided sufficient notice of charges). As a result, the allegations Day made
during the January 2003 conversation in the communications room are properly before the
Commission.
As to the charge of disobedience of orders, the Borough established that Margeson had
clearly outlined the proper manner in which to address complaints against fellow officers during
the Shaffer Park meeting of police supervisors held in January 2002. Based upon the evidence
submitted, the Commission concludes that Day disobeyed this command twice. First, Day
disobeyed Margeson's directive when he made allegations against Smith to subordinates during a
January, 2003 conversation with Sergeant Guido, Dispatcher Burns and Patrolman Haggerty in
the communications room. Both Dispatcher Bums and Patrolman Haggerty were subordinate to
Corporal Day. Second, Day disobeyed Margeson's order on April 27, 2003, when he repeated
the allegations against Smith and implied to patrolmen Heredia, Brewbaker and Parson that Lt.
Walters deleted files from the Metro system. Based upon this conduct, Council was justified in
terminating Day's employment.
Furthermore, the evidence before the Commission established that Day's conduct after
the Union meeting on April 27, 2003 directly contradicted the directive that Margeson imposed
on Day three days earlier, on April 24, 2003. Specifically, after the incident in the
communications room, Margeson reminded Day of the appropriate manner for an officer to raise
his concerns about questionable conduct by other officers, or dissatisfaction with department
matters. Nonetheless, Day ignored this order and again made allegations against superior
officers in front of subordinates after the Union meeting. As a result, it was also appropriate for
the Borough to terminate Day's employment for his failure to obey Margeson's order of April 24,
2003.
-26-
The evidence presented by the Borough likewise supports the charge that Day engaged in
conduct unbecoming an officer. As stated previously, conduct unbecoming may include any
action which "adversely affects the morale and efficiency of the police force or tends to destroy
public respect for, and confidence in, the police force." Feliciano, 758 A.2d at 297. The
Commission has determined that during two separate instances, Day alleged that one or more
members of the Department engaged in criminal or quasi-criminal conduct. The Commission
finds Day's behavior could, and in fact did, create feelings of doubt among other officers and
affect the morale of the Department. For this reason, Day's actions plainly fall within the realm
of unbecoming conduct, for which termination is an appropriate penalty. This conclusion is
underscored by the fact that Margeson not only warned his supervisory officers during the
January 2002 Shaffer Park meeting that airing complaints outside the proper channels would be
considered conduct unbecoming, but Margeson explicitly warned Day in his April 24, 2003 letter
that the consequence of engaging in similar behavior would be termination.
Having concluded that Day engaged in the conduct for which he was terminated, the
Commission must consider whether the penalty imposed by Council was not otherwise
prohibited, as well as whether the selection of the penalty of termination was arbitrary,
discriminatory, or an abuse of discretion. In his post-hearing brief, Counsel for Day argues that
the penalty of termination was improper, because Day's conversation following the Union
meeting on April 27, 2003 was protected Union conduct, and/or protected free speech. The
Commission finds each of these arguments unpersuasive for the following reasons.
First, the Commission has determined that Day's conversation on April 27, 2003 took
place after the Union meeting ended, and consequently, it cannot be considered protected Union
activity. While Day had requested support from the Union's legal defense fund during the
-27-
meeting, the issue had been tabled. Moreover, Day's conversations with Heredia, Brewbaker
and Parson did not involve Day providing an explanation for why the Chief was recommending
that he be disciplined and involved only a select group of fellow officers. Rather, his statements
consisted of describing to subordinates alleged acts of misconduct and cover-ups by superior
officers. Based on these facts, the Commission concludes that Day's statements on April 27
cannot constitute protected Union activity, and it declines to set aside the penalty of termination
for this reason.
Second, the Commission has found that Day's speech following the Union meeting on
April 27, 2003 is not protected by the First Amendment. Speech on the part of a public
employee is protected by the First Amendment when it touches on a matter of public concern,
and when the employee's interests in expression outweighs the government's interest in the
efficient and effective provision of its services. Baldassare v. New Jersey, 250 F.3d 188, 195 (3d
Cir. 2001). In the instant matter, the record demonstrates that the Department had a clear
interest in maintaining order and respect among its ranks, and that this interest outweighed Day's
desire to communicate to subordinates allegations against senior members of the Department.
The record clearly reflects that Day had already disclosed to Chief Margeson any and all
information he possessed regarding possible misconduct by officers in the Department. The
Chief had the authority and capacity to investigate Day's allegations. Day's defense of protected
speech is not raised in the context of communication with some outside entity that had the
authority and capacity to investigate his allegations. As junior officers in the Department,
Parson, Heredia and Brewbaker had neither the authority nor the ability to investigate Day's
claims. The Borough established that Day's speech was contrary to unambiguous directives from
Margeson, and that it negatively impacted the morale of the Department. Because of the
-28-
disruptive effect of Day's allegations, the Commission concludes that Day's speech was not
protected by the First Amendment, and it similarly declines to set aside the penalty for this
reason. See Rankin v. McPherson, 483 U.S. 378, 388 (1987).
In sum, the Commission finds that the Borough has discharged its burden, and proved
that Day engaged in the conduct for which he was terminated. Additionally, the Commission
concludes that that the penalty imposed was not otherwise improper, and that there is no
evidence that Day's termination was arbitrary, discriminatory, or an abuse of discretion.
CONCLUSIONS OF LAW
Based upon the foregoing findings and discussion, the Commission concludes as
follows:
The Borough of Carlisle is a Borough as classified by the General
Assembly of the Commonwealth of Pennsylvania.
2. The Borough Council has the statutory authority to hire, suspend, and fire
police officers.
The duties of the Carlisle Borough Civil Service Commission are to
determine whether the charges brought against an officer are supported by the evidence, whether
the penalty imposed by the Borough Council is not otherwise prohibited, and whether the
selection of the penalty is arbitrary, discriminatory, or an abuse of discretion.
-29-
4. The Borough bears the burden of proving by a preponderance of the
evidence that Day engaged in conduct which fits within one of the statutory bases for removing a
police officer as set forth in Section 1190 of the Borough Code, 53 P.S. §46190.
5. The Borough discharged its burden of establishing that Day made
accusations about fellow police officers in front of a subordinate officer and a civilian employee
in the communications room in January 2003.
6. The Borough discharged its burden of establishing that Day made
accusations about fellow officers in front of three subordinate officers after the Union meeting
had ended on April 27, 2003.
The conduct of Thomas L. Day described above, which the Borough has
established by a preponderance of the evidence, constitutes conduct that is unbecoming an
officer as well as disobedience of orders.
8. The Borough has established by a preponderance of the evidence that Day
engaged in actions which fit within the statutory reasons for removal of a police officer in the
Borough of Carlisle as set forth in the Commission's Civil Service Rules and Regulations and the
Borough Code.
9. The punishment imposed by the Borough is not otherwise prohibited, nor
is it arbitrary, capricious or discriminatory.
-30-
ORDER
AND NOW, this I" day of March, 2004, it is hereby ORDERED that the
foregoing Decision and Order, and specifically the Findings of Fact and Conclusions of Law set
forth therein, are hereby adopted and, further, that the actions of the Carlisle Borough Council
with respect to terminating Appellant Thomas L. Day on May 8, 2003, were proper and in
accordance with the Carlisle Borough Civil Service Rules and Regulations and Pennsylvania law
and are hereby upheld. Appellant's appeal is therefore denied.
CARLISLE BOROUGH CIVIL SERVICE COMMISSION
BY: `?
BENJA RAN ILLA
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MAR CA OL HOLLIS
-31-
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THOMAS L. DAY, JR.
Petitioner
V.
CIVIL SERVICE COMMISSION
Respondent
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No. 04-1346 CIVIL TERM
CIVIL ACTION - LAW
CERTIFICATE OF SERVICE
I HEREBY CERTIFY THAT A TRUE AND CORRECT COPY OF PETITION FOR
REVIEW AND REQUEST FOR HEARING REGARDING POSSIBLE IMPROPER
CONDUCT OF RESPONDENT COMMISSION AND REQUEST FOR ACCEPTANCE
OF ADDITIONAL EVIDENCE, WAS DULY SERVED UPON THE FOLLOWING
PERSONS OR ENTITIES IN THE ABOVE CAPTIONED MATTER:
BY HAND DELIVERY:
Civil Service Commission of the Borough of Carlisle
Benjamin Francavilla, Jr., Chairman
53 W. South Street
Carlisle, PA 17013
BY UNITED STATES FIRST-CLASS MAIL, POSTAGE PREPAID:
Edward L. Schorpp
10 E. High Street
Carlisle, PA 17013
Date: March 30, 2004
Joseph C. Rudolf, Esquire
Reed Smith, LLP
2500 One Liberty Place
1650 Market Street
Philadelphia, PA 19103
QJhh D. Buckle ksquire
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THOMAS L. DAY, JR., IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. : NO. 04-1346 CIVIL TERM
CIVIL SERVICE COMMISSION
OF THE BOROUGH OF CARLISLE,
Respondent
ORDER OF COURT
AND NOW, April 5, 2004, a Petition for Review in the Nature of an
Appeal having been filed in this matter, the transcription of the proceedings
before the Civil Service Commission of the Borough of Carlisle is directed to
be filed with the Court.
Any costs associated with this filing shall be incurred by appellant.
the: t,
offer, P.J.
,4oseph D. Buckley, Esquire
1237 Holly Pike
Carlisle, PA 17013
Edward Schorpp, Esquire
,/Civil Service Commission of the Borough of Carlisle
Borough Hall 0q-05 -Q
West South Street
Carlisle, PA 17013
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FIFILU4/5/04 J,OOAM
Revised. 4/7/04 935AM
3046 319
THOMAS L. DAY, JR.,
Petitioner
V.
CIVIL SERVICE COMMISSION OF
THE BOROUGH OF CARLISLE,
Respondent
V.
BOROUGH OF CARLISLE,
Intervenor
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 04-1346 CIVIL TERM
PETITION TO INTERVENE
AND NOW, comes the Borough
Edward L. Schorpp Esquire, and of Carlisle, Intervenor, by and through its Solicitor,
petitions to intervene in the within
1 The Borough of Carlisle (herein, action upon the following:
"
Principal offices at 53 West South Street, "Boron
ghania ) is /013ennsylvania borough with
Carlisle, "Bono l
was 2• The Borough employs amunicipal police force and, at all times relevant to this action, force the employer of Petitioner, Thomas L. Day, Jr. (herein, "Day"), until his dismissal from the
.
3• The Borough dismissed Day from its
dismissal afforded in the Pe Police force under statutory grounds for
nnsylvania Borough Code, 53 P.S. § 46190.
4• This appeal arises out of proceedings before the Respondent, Civil Service
Commission of the Borough of Carlisle (herein, "Commission"), wherein Day challenged the
propriety of his dismissal from the Borough's police force.
5• As Day's employer, the Borough was a
Commission; those proceedings were held under the authorip?y to the proceedings before the
53 P.S. § 46191, and the Pennsylvania Local A enc Law, of the Pennsylvania Borough Code,
6• The Borough's action to dismiss Da 2 Pa C S § 551 et seg.
Commission. Y from its police; force was upheld by the
7. The Borough could and should have been joined as an original part
y to the within
action, as it was a party in the proceedings below.
8. A judicial determination as to the propriety of the Commission's decision affects
legally enforceable interests of the Borough in its police employment prerogatives.
9. The Borough intends to demand and assert that the dismissal of Day from its police
force must be affirmed by this court.
10. Upon the granting of this Petition, the Borough intends to file an answer to Day's
Petition for Review and Request for Hearing substantially in the form attached hereto as Exhibit "A."
11. Under the authority of York Township Batty, f694 A.2d 395 (Pa. Cmwlth. 1997),
the Borough is the indispensable party to this appeal, not the Commission. As such, the Borough
may enter its appearance in the within matter as a matter of right. Day has improperly captioned the
action to exclude the Borough, the real party in interest.
WHEREFORE, the Borough of Carlisle respectfully requests permission to intervene in the
within proceedings.
Very respectfully submitted,
MARTSON DEARDORFF WILLIAMS & OTTO
B /
Edward L. Schorpp, Efor Borough of Carlisle
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Date: April 7, 2004
Exhibit A
OF\FILESVDATAFILEVCvlfsleBorough3046ADocu enrsV004A319. oppealanswc
Created 42/04 1002AM
Revised. 4/7104 934AM
3046 319
THOMAS L. DAY, JR.,
Petitioner
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
CIVIL SERVICE COMMISSION OF
THE BOROUGH OF CARLISLE,
Respondent
NO. 04-1346 CIVIL TERM
V.
BOROUGH OF CARLISLE,
Intervenor
RESPONSE OF THE BOROUGH OF CARLISLE TO
PETITION FOR REVIEW AND REQUEST FOR HEARING
AND NOW, comes the Borough of Carlisle, Intervenor in the within matter, by and through
its Solicitor, Edward L. Schorpp, Esquire, and answers the Petition for Review and Request for
Hearing as follows:
Admitted in part and denied in part. It is admitted that this Court has jurisdiction of
some, but not all, of the issues raised in this matter; see New Matter herein. Reference to the cited
statutory authority for jurisdiction is a conclusion of law requiring no answer herein.
2. Admitted.
Admitted in part and denied in part. It is admitted that Petitioner, Thomas L. Day,
Jr. (herein "Day"), was employed by the Borough of Carlisle (herein, the "Borough") as a police
officer until his dismissal in May 2003, which dismissal is the subject matter of the within appeal.
4. Admitted in part and denied in part. It is admitted that Petitioner was dismissed on
the date stated. It is denied that Petitioner properly and accurately states the basis of his dismissal,
which basis is properly set forth in the Decision of the Civil Service Commission of the Borough of
Carlisle (herein, the "Commission"), which is attached to the Appeal Petition and which speaks for
itself.
5. Admitted.
6. Denied as stated. The Commission held one hearing which extended over many days
of testimony. The remaining averments of this paragraph are admitted.
EXHIBIT "A"
7. Denied. The averments of Paragraph 7, and of all of its sub-parts, are denied as being
conclusions of law to which no answer is required. To the extent that answer is required, it is
averred that the adjudication did not violate any of Day's constitutional rights. Further answer is
provided as follows:
a. Admitted in part and denied in part. It is admitted that the hearing was
closed. The averments that Day's constitutional rights or legal rights were violated
are conclusions of law requiring no answer.
b. Denied. It is denied that the Commission and its agents evidenced partiality
or were, in fact, biased in favor of any party. Day complains of the treatment
accorded his counsel because ofhis un-lawyerly conduct and inappropriate behavior.
Under the circumstances, the Commission members and their counsel exhibited
tremendous patience and impartiality, notwithstanding Day's counsel's inappropriate
and badgering conduct. The averments that Day's constitutional rights or legal rights
were violated are conclusions of law requiring no answer.
C. Admitted in part and denied in part. It is admitted that witnesses were
sequestered and that the Chief of Police was present for all testimony, just as was
Day. The Borough, as an employer-party, was entitled to have a representative
present, just as Day, as the affected employee, was entitled to be present. It is noted
that Day testified and was present for the entire proceedings, thus accorded the same
privilege as the Borough. The averments that Day's constitutional rights or legal
rights were violated are conclusions of law requiring no answer.
d. Denied. After reasonable investigation, the Borough is without knowledge
or information sufficient to form a belief as to the truth of these averments and the
same are therefore denied. By way of further answer, the Carlisle Borough Manager,
as chief executive and administrative officer of the Borough and in consultation with
the chairman of the Commission, did make administrative arrangements for the
employment of counsel, chosen by the Commission and not by the Borough, to
advise it in the proceedings. The averments that constitutional rights were violated
are conclusions of law requiring no answer herein. Day is precluded, as a matter of
law, from raising this issue for the first time on appeal, as he did not raise it below.
Further, even though the Commission selected its counsel, as a matter of law and
under the statutory provisions of the Pennsylvania Borough Code, the Borough was
authorized to select counsel to advise the Commission.
e. Admitted in part and denied in part. It is admitted that counsel for the
Borough did inadvertently and unknowingly provide the 18 pages to the court
reporter. Notwithstanding, after proper voir dire, the Commission members affirmed
their ability to remain impartial in the proceedings and to set aside the information
contained in the pages. More importantly, all of the substantive matters contained
in those documents were introduced into the record at varying stages of the
proceedings. The averments that Petitioner's constitutional rights or legal rights were
violated are conclusions of law requiring no answer.
f. Denied. The Decision of the Commission speaks for itself. The remaining
averments constitute conclusions of law concerning evidentiary matters. The
averments that Petitioner's constitutional rights or legal rights were violated are
conclusions of law requiring no answer.
g. Denied. Day's conduct was not in furtherance of union activity and his
speech was not protected under constitutional. precepts. The speech concerned
matters that were of no current importance to the public and did not outweigh the
Borough's interests as his employer. The averments that his constitutional rights or
legal rights were violated are conclusions of law requiring no answer.
h. Denied. The Borough avers that the court lacks jurisdiction to hear Day's
averments in this subparagraph, as exclusive jurisdiction lies with the Pennsylvania
Labor Relations Board. Notwithstanding, his conduct was not in furtherance of
union activity and his speech was not protected under constitutional precepts. The
averments that his constitutional rights or legal rights were violated are conclusions
of law requiring no answer.
8. Denied. The averments of Paragraph 8 and each of its sub-parts are conclusions of
law requiring no answer herein. By way of further answer, the Borough responds as follows:
a. Admitted in part and denied in part. It is admitted that the hearing was closed
to persons, including Day's family. The remaining averments are conclusions of law
to which no answer is required.
b. Denied. These averments are conclusions of law to which no answer is
required. Further, the subject matter of these averments lie within the exclusive
jurisdiction of the Pennsylvania Labor Relations Board and not this court.
C. Denied. It is denied that the Borough made any admissions as stated. The
remaining averments are conclusions of law to which no answer is required.
d. Denied. The averments of Paragraph 7c of this answer are incorporated
herein by reference.
e. Denied. These averments are conclusions of law to which no answer is
required.
f. Denied. These averments are conclusions of law to which no answer is
required.
g. Denied. These averments are conclusions of law to which no answer is
required.
h. Denied. These averments are conclusions of law to which no answer is
required.
i. Denied. These averments are conclusions of law to which no answer is
required.
9. Denied. The averments of Paragraph 9, and substantially each of its sub-parts, are
conclusions of law requiring no answer herein. By way of further answer, the Borough responds as
follows:
a. Admitted. By way of further answer, the Commission properly closed the
hearing.
b. Denied. These averments are conclusions of law to which no answer is
required.
C. Denied. These averments are conclusions of law to which no answer is
required. Day has failed to preserve this issue by not raising it below. Further, it is
denied that any ex parte communications occurred or that the Commission became
biased against Day.
d. Denied. These averments are conclusions of law to which no answer is
required. Day has failed to preserve this issue by not raising it below. Further, it is
denied that any one acting on behalf of the Commission acted as a prosecutor. Day
was not properly represented by his counsel, notwithstanding the extreme leniency
afforded him throughout the hearing.
e. Admitted in part and denied in part. It is admitted that no oral argument was
afforded either side. It is denied that any violation of law occurred in this respect.
10. Denied. The averments of Paragraph 10 are conclusions of law requiring no answer
herein.
11. Denied. The averments of Paragraph 11 are conclusions of law requiring no answer
herein.
WHEREFORE, Intervenor, the Borough of Carlisle, demands that this appeal be dismissed.
ADDITIONAL TESTIMONY
12. Denied. The averments with respect to the request to take additional testimony are
denied factually and are waived as a matter of law.
a. Denied. The attorney for the Commission was selected by the Commission.
Day has waived this issue by not raising it below, thus failing to preserve it on
appeal. Notwithstanding, under the law, the Borough Council, acting through the
Borough Manager, has the full authority to select and retain counsel for the
Commission.
b. Denied. There were no ex parte communications between any "agents" of the
Borough and counsel for the Commission. Notwithstanding, Petitioner failed to
assert this claim before the Commission and, under the applicable the law, the issue
is waived for all purposes.
C. Admitted in part and denied in part. It is admitted that certain incompetent
evidence was properly excluded by the Commission. It is denied that any probative
evidence bearing on the relevant issues has arisen since the close of Petitioner's case.
A bald, unspecific allegation that "additional evidence has arisen," without a
demonstrable showing that such evidence would have made a difference in the
outcome of the case is insufficient basis to order additional testimony. Day simply
seeks to go on a fishing expedition because he received an adverse decision below.
WHEREFORE, Intervenor demands that the request to take additional testimony be denied
and that the Court proceed to decide the matter on the full and complete record developed by the
Commission.
NEW MATTER
13. Day failed to make any objection before the Commission that the tribunal was biased
against him or that its counsel was acting in a prosecutorial role. He may not assert these issues for
the first time on appeal.
14. Day failed to make any objection before the Commission that the Borough improperly
selected its counsel, which is denied, or that improper ex parte statements were made to counsel for
the commission, which is also denied. He may not assert these: issues for the first time on appeal.
15. This court lacks jurisdiction to entertain any claims relating to "union protected
speech," as the Pennsylvania Labor Relations Board has exclusion jurisdiction over such matters.
16. The record may not be reopened for the reasons Day claims. He may not now try to
build a record based upon issues not properly preserved below. He is precluding from asserting
those claims. Further, Day has failed to provide specific facts which would enable the court to glean
from his petition any arguable basis for re-opening the record.
17. In addition, Day's petition has not sufficiently set forth any compelling reason to
justify developing "additional evidence," not with respect to any compelling nature of the evidence,
nor any compelling justification for not having introduced the evidence before the Commission in
the first instance. Day has failed to provide specific facts which would enable the court to glean
from his petition any arguable basis for re-opening the record.
MARTSON DEARDORFF WILLIAMS & OTTO
By
Edward L. Sclaorpp, Esquire
Solicitor for the Borough of Carlisle
Ten East High Street
Carlisle, PA 17013
(717) 243-3341
Date: April 7, 2004
VERIFICATION
I verify that the statements contained herein are true and correct. I understand that false
statements herein are made subject to the penalties of 18 Pa.C.S.A. §4904, relating to unworn
falsification to authorities.
Dated: "7 A'I
CERTIFICATE OF SERVICE
I, Tricia D. Eckenroad, an authorized agent for Martson ]Deardorff Williams & Otto, hereby
certify that a copy of the foregoing Response of the Borough of Carlisle to Petition for Review and
Request for Hearing was served this date by depositing same in t:he Post Office at Carlisle, PA, first
class mail, postage prepaid, addressed as follows:
Joseph D. Buckley, Esquire
1237 Holly Pike
Carlisle, PA 17013
Joseph C. Rudolf, Esquire
2500 One Liberty Place
1650 Market Street
Philadelphia, PA 19103-7301
MARTSON DEARDORFF WILLIAMS & OTTO
By
Tricia D. Eckenroad
Ten East High Street
Carlisle, PA 1701:3
(717) 243-3341
Dated:
VERIFICATION
I verify that the statements contained herein are true and correct. I understand that false
statements herein are made subject to the penalties of 18 Pa.C.S.A. §4904, relating to unswom
falsification to authorities.
A ? ?.,
Dated: 7 ° `f
CERTIFICATE OF SERVICE
I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams & Otto, hereby
certify that a copy of the foregoing Petition to Intervene was served this date by depositing same in
the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows:
Joseph D. Buckley, Esquire
1237 Holly Pike
Carlisle, PA 17013
Joseph C. Rudolf, Esquire
2500 One Liberty Place
1650 Market Street
Philadelphia, PA 19103-7301
MARTSON DEARDORFF WILLIAMS & OTTO
T ' ' . Eckenroad
Ten East High Street
Carlisle, PA 17013
(717) 243-3341
Dated: April 7, 2004
(1 O -n
- T
REED SMITH LLP
By: Joseph C. Rudolf
Attorney I.D. No. 44189
Amy Z. Snyder
Attorney I.D. No. 88899
2500 One Liberty Place
Philadelphia, PA 19103
(215) 851-8100
THOMAS L. DAY, JR.,
Petitioner,
V.
CIVIL SERVICE COMMISSION OF
THE BOROUGH OF CARLISLE
Respondent.
Attorneys for Respondent,
Civil Service Commission
of The Borough of Carlisle
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
NO. 04-1346 CIVIL TERM
ENTRY OF APPEARANCE;
TO THE PROTHONOTARY:
Kindly enter the appearance of Joseph C. Rudolf and Amy Z. Snyder as counsel
for Respondent, Civil Service Commission of The Borough of Carlisle in the above-captioned
matter.
,
Joseph C. ud
Attorney I. . No. 44189
Amy Z. Snyder
Attorney I.D. No. 88899
REED SMITH LLP
2500 One Liberty Place
1650 Market Street
Philadelphia, PA 19103
(215) 851-8100
Attorneys for Respondent,
Civil Service Commission of
The Borough of Carlisle
Dated: April 12, 2004
CERTIFICATE OF SERVICE
I, Amy Z. Snyder, hereby certify that on this 12`h day of April, 2004, a true and
correct copy of the foregoing Entry of Appearance was served by U.S. First Class Certified Mail,
Return Receipt Requested on the following:
Joseph D. Buckley, Esquire
1237 Holly Pike
Carlisle, PA 17013
Amy Z. 'y "r
W
-77
- N
-a n
CD
THOMAS L. DAY, JR.,
Petitioner
V.
CIVIL SERVICE COMMISSION OF
THE BOROUGH OF CARLISLE,
Respondent
V.
BOROUGH OF CARLISLE,
Intervenor
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 04-1346 CIVIL TERM
COURT
A
ND NOW, this da oY 2004, upon consideration ofthe within Petition
to Intervene, a Rule is issued upon thoner, Thomas L. Davy, Jr., and the Respondent, Civil
Service Commission of the Borough of Carlisle, to show cause why the prayer of the petition should
not be granted. Rule returnable
Co
BY THE COURT
110ONav--e- ?-
Edward L. Schorpp, Esquire,
Borough of Carlisle
Joseph Rudolf, Esquire,
Civil Service Commission of the Borough of Carlisle _T 9 d Y
Joseph D. Buckley, Esquire,
Thomas L. Day, Jr.
,?
,?
tl.?i?
,.,,
THOMAS L. DAY, JR., IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
Petitioner CIVIL ACTION
vs.
NO. 04-1346 CIVIL, TERM
CIVIL SERVICE COMMISSION OF
THE BOROUGH OF CARLISLE,
Respondent
NOTICE TO PLEAD
You are hereby notified to file a written response to the enclosed NEW
MATTER within twenty (20) days from service hereof or a judgment may be entered against
you.
Reed Smith LLP
By:
Joseph C. F:udolf
I.D. No. 44189
Amy Z. Snyder
I.D. No. 88899
Reed Smith LLP
2500 One Liberty Place
1650 Market Street
Philadelphia, PA 19103
(215) 851-8100
Attorneys for Respondent,
Civil Service Commission of the Borough
of Carlisle
Dated: April 19, 2004
THOMAS L. DAY, JR.,
Petitioner
vs.
CIVIL SERVICE COMMISSION OF
THE BOROUGH OF CARLISLE,
Respondent
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION
NO. 04-1346 CIVIL TERM
RESPONDENT'S ANSWER TO PETITION FOR REVIEW
AND REQUEST FOR HEARING WITH NEW MATTER
AND NOW, comes the Civil Service Commission of the Borough of Carlisle
("Commission"), by through its counsel, Reed Smith LLP, and answers the Petition for Review
and Request for Hearing as follows:
1. Denied as a conclusion of law to which no response is required. To the extent any
of the averments contained in this paragraph are deemed factual, they are denied.
2. Admitted in part and denied in part. It is admitted that Petitioner, Thomas L. Day,
Jr., is an adult individual. After reasonable investigation, the Respondent is unable to form a
belief as to the accuracy of Petitioner's address, and the same is, therefore, denied.
3. Admitted in part and denied in part. It is admitted that, until May 9, 2003,
Petitioner was employed by Carlisle Borough as a police officer. As some of the events related
to the Petition for Review pertain to events which occurred after May 9, 2003, it is denied that
Petitioner was employed by the Borough in any capacity after May 9, 2003.
4. It is admitted that the Borough informed Petitioner of his termination in a letter
dated May 9, 2003. Petitioner's characterizations of the contents of that letter are denied as the
document speaks for itself.
Admitted.
6. Admitted in part and denied in part. It is admitted that, on March 1, 2004, the
Carlisle Borough Civil Service Commission issued a decision upholding the Borough's decision
to terminate Petitioner. It is denied that this followed "various hearings and arguments." By
way of further answer, the Commission held hearings on July 14, 2003, August 11, 2003, August
12, 2003, August 25, 2003, October 6, 2003, and October 8, 2003.
Denied as a conclusion of law to which no response is required. To the extent
that the allegations contained in this paragraph and its sub-paragraphs are deemed factual, they
are denied.
a. Admitted in part and denied in part. It is admitted that the Commission
closed the hearing to the public, a decision within the Commission's discretion, and Petitioner
does not aver in his Petition that the Commission abused its discretion in this regard. It is denied
that the Commission's decision in this respect even implicated, much less violated, Petitioner's
state or federal constitutional rights or any of the laws of the Commonwealth of Pennsylvania.
b. Denied as a conclusion of law to which no response is required. To the
extent that the allegations contained in this paragraph are deemed factual, they are denied.
C. Admitted in part and denied in part. It is denied that the Commission
ordered the sequestration of witnesses in this matter. Since the ;hearing was closed, the issue of
sequestration was moot. It is admitted that the Commission permitted the Chief of Police, as a
representative of Borough, a party before the Commission, to remain while the Commission
received testimony and that the Chief of Police subsequently testified before the Commission.
By way of further answer, the Commission also permitted Petitioner, as a party to the proceeding
before the Commission, to remain in the room to hear the testimony which was offered to the
Commission, and Petitioner also subsequently testified before the Commission. It is denied that
the Commission's decision in this respect even implicated, much less violated, Petitioner's state
or federal constitutional rights or any of the laws of the Commonwealth of Pennsylvania.
d. Admitted in part and denied in part. It is admitted that the Commission's
solicitor was appointed by the Borough as required by state law. It is expressly denied that such
action in any way implicates, much less violates, Petitioner's state or federal constitutional rights
-2-
or any of the laws of the Commonwealth of Pennsylvania. With respect to Petitioner's
statements regarding his beliefs, Respondent has insufficient knowledge or information to form a
belief as to what Petitioner believes and therefore, the statements in this sub-paragraph related to
Petitioner's beliefs are denied.
e. Admitted in part and denied in part. It is admitted that, during one of the
hearing sessions, counsel for the Borough inadvertently provided the Commission with eighteen
pages of documents, which were later marked as Exhibit C-18, in order to ensure a complete
record in this matter. It is denied that such action deprived Petitioner of a fair and impartial
proceeding. By way of further answer, immediately following discovery of this error, the two
remaining commissioners testified on the record that they could still render a fair and unbiased
decision. To further underscore the sheer absurdity of Petitioner's assignment of error in this
paragraph, any appropriate grounds for recusal by the remaining Commission members would
implicate the rule of necessity and entitle them to continue hearing the matter before them.
f. Denied as a conclusion of law to which rio response is required. By way
of further answer, the decision of the Commission, which addressed the charges filed against
Petitioner by the Borough, speaks for itself.
g. Denied as a conclusion of law to which no response is required. By way
of further answer, both the Commission and this Honorable Court lack jurisdiction to adjudicate
the issues of whether Petitioner was terminated for engaging in union activity, as the
Pennsylvania Labor Relations Board has sole and exclusive jurisdiction over such claims.
h. Denied as a conclusion of law to which no response is required. By way
of further answer, both the Commission and this Honorable Court lack jurisdiction to adjudicate
the issues of whether Petitioner was terminated for engaging in union activity, as the
Pennsylvania Labor Relations Board has sole and exclusive jurisdiction over such claims.
8. Denied as a conclusion of law to which no response is required. To the extent
that the allegations contained in this paragraph are deemed factual, they are denied.
a. Admitted in part and denied in part. It is admitted that the Commission
closed the hearing to the public, including to Petitioner's family, a decision within the
-3-
Commission's discretion, and Petitioner does not aver in his Petition that the Commission abused
its discretion in this regard. It is denied that the Commission's decision in this respect even
implicated, much less violated, Petitioner's rights under the laws of the Commonwealth of
Pennsylvania.
b. Denied as a conclusion of law to which no response is required. By way of
further answer, both the Commission and this Honorable Court lack jurisdiction to adjudicate the
issue of whether Petitioner was terminated for engaging in union activity, as the Pennsylvania
Labor Relations Board has sole and exclusive jurisdiction over such claims. In addition, the
authority of the Commission is limited to inquiry into two areas: did the appellant engage in the
conduct for which he was disciplined and, if so, was the penalty imposed by the appointing
authority arbitrary, capricious or discriminatory. York Township Board of Commissioners v.
Batty, 694 A.2d 395, 397 (Pa. Cmwlth. 1997); Borough of Jenkintown v. Civil Service
Commission of Jenkintown, 478 A.2d 941 (Pa. Cmwlth. 1984).
C. Denied as a conclusion of law to which no response is required. By way of
further answer, the authority of the Commission is limited to inquiry into two areas: did the
appellant engage in the conduct for which he was disciplined arid, if so, was the penalty imposed
by the appointing authority arbitrary, capricious or discriminatory. York Township Board of
Commissioners v. Batty, 694 A.2d 395 (Pa. Cmwlth. 1997); Borough of Jenkintown v. Civil
Service Commission of Jenkintown, 478 A.2d 941 (Pa. Cmwlth. 1984).
d. Admitted in part and denied in part. In light of the Commission's decision
to close the hearing, sequestration of witnesses in this matter became moot. It is admitted that
the Commission permitted the Chief of Police, as a representative of Borough, a party before the
Commission, to remain while the Commission received testimony and that the Chief of Police
subsequently testified before the Commission. By way of further answer, the Commission also
permitted Petitioner, as a party to the proceeding before the Commission, to remain in the room
to hear the testimony which was offered to the Commission and Petitioner also subsequently
testified before the Commission. It is denied that the Commission's decision in this respect even
implicated, much less violated, Petitioner's state or federal constitutional rights or any of the
laws of the Commonwealth of Pennsylvania.
-4-
e. Denied as conclusions of law to which no response is required. To the
extent a response is deemed required, Respondent denies that it did not follow the proper
standard of review as required under the laws of this Commonwealth.
f Denied as conclusions of law to which no response is required. To the
extent a response is deemed required, the written decision of the Commission speaks for itself.
g. Denied as conclusions of law to which no response is required. To the
extent a response is deemed required, Respondent denies that it. failed to apply properly, the legal
definition of "Conduct Unbecoming an Officer."
h. Denied as conclusions of law to which no response is required. To the
extent a response is deemed required, Respondent denies that it did not apply properly, the legal
definition of "Disobedience of Orders."
i. Denied as conclusions of law to which no response is required. To the
extent a response is deemed required, Respondent denies that the penalty imposed on Petitioner
was arbitrary, capricious, or discriminatory in light of the circumstances and the nature and
seriousness of the alleged infraction.
9. Denied as conclusions of law to which no response is required. To the extent a
response is deemed required, Respondent denies that the adjudication in question violated the
Local Agency laws of this Commonwealth.
a. It is admitted that Respondent closed the hearing to the public over
Petitioner's objection. The remaining allegations contained in this paragraph are legal
conclusions to which no response is required. To the extent that a response is deemed required,
it is both denied that Petitioner's allegations state a violation of the Local Agency Law and that
Respondent violated the Local Agency Law by closing the hearing to the public.
b. Denied. By way of further response, proceedings before local agencies,
such as the instant matter, are not bound by technical rules of evidence. See 2 Pa. C.S. § 554.
-5-
C. Denied as conclusions of law to which no response is required. By way of
further response, the Petitioner did not raise this issue during the proceedings before the
Commission, and it is therefore waived for purposes of appeal before this Honorable Court.
d. Denied as conclusions of law to which no response is required. By way of
further response, the Petitioner did not raise this issue during the proceedings before the
Commission, and it is therefore waived for purposes of appeal before this Honorable Court.
e. Admitted in part, denied in part. It is admitted that Respondent refused to
permit Petitioner's counsel to make a closing argument. Respondent denies that such an exercise
of its discretion implicates, much less violates the Local Agency Law. By way of further
answer, all parties to the proceeding before the Commission were permitted to submit post-
hearing briefs, which the Commission considered prior to issuing its decision in this matter.
10. Denied as conclusions of law to which no response is required. To the extent a
response is deemed required, Respondent denies that its adjudication and findings of fact were
not supported by substantial evidence.
11. Denied as conclusions of law to which no response is required. To the extent a
response is deemed required, Respondent denies that its conclusions of law were not supported
by substantial evidence.
WHEREFORE, Respondent requests that this appeal be dismissed.
ADDITIONAL TESTIMONY
12. Denied. By way of further answer, the allegations raised in paragraph twelve (12)
and its sub-paragraphs were not preserved for appeal, as they were not raised before the
Commission below.
a. Denied as stated. As a matter of state law, under the Borough Code, the
selection of counsel for the Borough Civil Service Commission is made by Borough Council.
-6-
b. Denied as stated. By way of further answer, the issues raised in this sub-
paragraph were not preserved for appeal, as Petitioner did not raise these allegations before the
Commission.
C. Denied as stated. Respondent is without knowledge or information
sufficient to form a belief as to what "additional evidence" has arisen to which Petitioner is
referring in this sub-paragraph. By way of further answer, Respondent properly excluded
irrelevant evidence during the hearing on this matter. Also byway of further answer,
Respondent submits that Petitioner's vague statement that "additional evidence" has arisen is an
insufficient basis to order the taking of additional testimony. Finally, Petitioner has waived his
right to raise this issue on appeal by failing to identify such additional evidence in his Petition.
WHEREFORE, Respondent demands that Petitioner's request to take additional
testimony be denied and that the Court proceed to consider the matter on the full and complete
record established by the Commission.
NEW MATTER
Hearings under Borough Code and the Civil Service Regulations enacted by
Carlisle Borough are conducted in accordance with the Local Agency Law, 2 Pa. C.S. § 553 et
seq.
2. Section 753(a) of the Local Agency Law, 2 Pa. C.S. § 753(a), provides that a
party may not raise an issue on judicial appeal which was not raised before the local agency
below.
3. At no point during the hearing did Petitioner raise; an objection that the
Commission and its agents acted in a manner more characteristic; of a prosecutor than a neutral,
detached and impartial decision maker.
-7-
4. At no point during the hearing did Petitioner raise an objection on how counsel
for the Commission should be hired.
At no point during the hearing did Petitioner raise an objection that counsel for
the Commission was allegedly having ex parte communications with agents of the Borough prior
to and during the hearing, and or that counsel for the Commission attempted to steer the hearing
in favor of the Borough.
6. To the extent that Petitioner is asserting claims relating to "union protected
speech" or arising under the Commonwealth's "labor laws," this Court lacks jurisdiction to
address those claims because sole and exclusive jurisdiction over such claims rests with the
Pennsylvania Labor Relations Board.
It is Respondent's position that Petitioner has waived some or all of the arguments
and issues which he is attempting to raise in the instant Petition for Review by failing to properly
preserve them below.
8. Petitioner has failed to assert facts sufficient to provide a basis for the Court to re-
open the record.
9. Petitioner's Petition fails to state a claim upon which relief can be granted.
10. The relief requested must be denied based upon the doctrine of waiver.
11. The relief requested must be denied based upon the doctrine of laches.
-8-
12. The relief requested must be denied based upon the doctrine of estoppel.
Reed Smith LLP
By: /?,, I,- L
oseph Al udolf'
I.D. No. 89
Amy Z. Snyder
I.D. No. 88899
Reed Smith LLP
2500 One Liberty Place
1650 Market Street
Philadelphia, PA 19103
(215) 851-8100
Attorneys iFor Respondent,
Civil Service Commission of the
Borough of Carlisle
Dated: April 19, 2004
-9-
VERIFICATION
I verify that the statements contained herein are true and correct. I understand that false
statements made herein are subject to the penalties of 18 Pa. C.S. A. §4904, relating to unsworn
falsification to authorities.
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Dated: = AIZI a
CERTIFICATE OF SERVICE
I, Amy Z. Snyder, hereby certify that a copy of the foregoing Answer to Petition For
Review and Request for Hearing With New Matter was served this date via U.S. First Class
Certified Mail, Return Receipt Requested, upon the following:
Joseph D. Buckley, Esquire
1237 Holly Pike
Carlisle, PA 17013
Edward L. Schorpp, Esquire
Martson Deardoff Williams & Otto
Ten East High Street
Carlisle, PA 17013
Arhy Z. Sn er
Date: April 19, 2004
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THOMAS L. DAY, JR., : IN THE COURT OF COMMON PLEAS
Petitioner : OF CUMBERLAND COUNTY,
VS. : PENNSYLVANIA
CIVIL SERVICE COMMISSION OF : NO. 04- 1346 CIVIL TERM
THE BOROUGH OF CARLISLE,
Respondent
And
BOROUGH OF CARLISLE,
Intervenor
PETITIONER'S RESPONSE TO RULE TO SHOW CAUSE WHY PETITION TO
INTERVENE SHOULD NOT BE GRANTED
AND NOW this 30"' day of April, 2004, comes Petitioner, Thomas L. Day, Jr.,
by and through his attorney, Joseph D. Buckley, Esquire, and responds to the Court's
Rule to show cause as follows:
1. The Borough of Carlisle's Petition to intervene should be granted.
Respectfully submitted
1237 Holly Pike
Carlisle, PA ] 7013
(717) 249-2448
CERTIFICATE OF SERVICE
I HEREBY CERTIFY THAT A TRUE AND CORRECT COPY OF PETITIONER'S
RESPONSE TO RULE TO SHOW CAUSE WHY PETITION TO INTERVENE
SHOULD NOT BE GRANTED, WAS DULY SERVED UPON THE FOLLOWING
PERSONS BY UNITED STATES FIRST-CLASS MAIL, POSTAGE PREPAID:
Edward L. Schorpp, Esquire
10 East High Street
Carlisle, PA 17013
Amy Z. Snyder, Esquire
2500 One Liberty Place
1650 Market Street
Philadelphia, PA 19103
Joseph C. Rudolf, Esquire
2500 One Liberty Place
1650 Market Street
Philadelphia, PA 19103
Date: April 30, 2004
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THOMAS L. DAY, JR.,
Petitioner
Vs.
CIVIL SERVICE COMMISSION OF
THE BOROUGH OF CARLISLE,
Respondent
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION
NO. 04-1346 CIVIL, TERM
ORDER OF THE COURT
00
AND NOW, this day of , 2004, upon consideration of
the Petition to Intervene of the Borough of Carl ftand >pon se thereto, the Petition to
Intervene is hereby GRANTED.
BY THE COURT
10k. .
lAyll 'r%
e offer, P sident Judge
Adward L. Schorpp, Esquire
Borough of Carlisle
L oseph C. Rudolf, Esquire
Civil Service Commission of the Borough of Carlisle
Xoseph D. Buckley, Esquire
Thomas L. Day, Jr.
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THOMAS L. DAY, JR., IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
Petitioner CIVIL ACTION
VS.
NO. 04-1346 CIVIL TERM
CIVIL SERVICE COMMISSION OF
THE BOROUGH OF CARLISLE,
Respondent
RESPONDENT'S RESPONSE TO THE COURT'S APRIL 19, 2004
RULE TO SHOW CAUSE WHY THE ]PRAYER OF
THE PETITION TO INTERVENE SHOULD NOT BE GRANTED
AND NOW, comes the Civil Service Commission of the Borough of Carlisle
("Commission"), by through its counsel, Reed Smith LLP, and responds to the Court's April 19,
2004 Rule to Show Cause Order as follows:
Respondent, Civil Service Commission of the Borough of Carlisle, is an agency of the
Borough statutorily mandated to hear appeals of certain disciplinary actions taken by
Borough Council. 53 P.S. §§ 46171 et seq.
2. The potential Intervenor in this matter, the Borough of Carlisle ("Borough"), is a
Pennsylvania borough with principal offices at 53 West South Street, Carlisle,
Pennsylvania, 17013.
3. The Borough employed petitioner Thomas L. Day ("Petitioner") as a police officer until
May 8, 2003, when the Borough Council voted to terminate his employment.
4. Petitioner appealed his termination to the Respondent, Carlisle Borough Civil Service
Commission ("Commission"). On March 1, 2004, the Commission issued a decision
upholding the Borough's decision to terminate Petitioner's employment.
Petitioner has filed a petition for review and named the Commission as the Respondent.
6. The Commission submits that the Borough's Petition to Intervene should be granted.
Reed Smith LLP
By: (? L
Joseph C. Rudolf I.D. No. 44189
Amy Z. Snyder
I.D. No. 88899
Reed Smith LLP
2500 One Liberty Place
1650 Market Street
Philadelphia, PA 19103
(215) 851-8100
Attorneys fbr Respondent,
Civil Service Commission of the Borough
of Carlisle
Dated: April 29, 2004
2
CERTIFICATE OF SERVICE
I, Amy Z. Snyder, hereby certify that a copy of the foregoing Response to the
Court's April 19, 2004 Rule to Show Cause Why the Prayer of the Petition To Intervene Should
Not Be Granted was served this date via U.S. First Class Certified Mail, Return Receipt
Requested, upon the following:
Joseph D. Buckley, Esquire
1237 Holly Pike
Carlisle, PA 17013
Edward L. Schorpp, Esquire
Manson Deardoff Williams & Otto
Ten East High Street
Carlisle, PA 17013
Amy Sn}( er
Date: April 29, 2004
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F WILESIDATAEILECuiis]aomugh3046\Docummts\20W V 19.mleabsolute
Created: 5/6/04 1 47PM
Revised- 5/6/04 2.05PM
THOMAS L. DAY, JR.,
Petitioner
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
CIVIL SERVICE COMMISSION OF
THE BOROUGH OF CARLISLE,
Respondent
V.
BOROUGH OF CARLISLE,
Intervenor
NO. 04-1346 CIVIL TERM
PETITION TO MAKE RULE ABSOLUTE
AND NOW, comes the Borough of Carlisle, Intervenor, by and through its Solicitor,
Edward L. Schorpp, Esquire, and petitions to make rule absolute in the within action upon the
following:
The Borough of Carlisle (herein, "Borough") heretofore filed its Petition to Intervene
in the within action and a Rule to Show Cause was issued thereon by Order dated April 19, 2004.
In response to the Rule to Show Cause, Respondent, Civil Service Commission of
the Borough of Carlisle, has agreed that the petition to Intervene should be granted (See, paragraph
6 of its Response duly filed and attached hereto as Exhibit "A."
3. In response to the Rule to Show Cause, Petitioner,'fhomas L. Day, Jr., has agreed that
the Petition to Intervene should be granted (See, paragraph 1 of its Response duly filed and attached
hereto as Exhibit "B."
WHEREFORE, Intervenor, the Borough of Carlisle, respectfully requests your Honorable
Court to make the Rule absolute and grant its intervention as a party in the within action.
Very respectfully submitted,
MARTSON DEARDORFF WILLIAMS & OTTO
Edward L. Schorpp, Esq re
Solicitor for Borough of Carlisle
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Date: May 7, 2004
THOMAS L. DAY, JR., IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
Petitioner CIVIL ACTION
vs.
CIVIL SERVICE COMMISSION OF
THE BOROUGH OF CARLISLE,
Respondent
NO. 04-1346 CIVIL TERM
RESPONDENT'S RESPONSE TO THE COURT"S APRIL 19, 2004
RULE TO SHOW CAUSE WHY THE PRAYER OF
THE PETITION TO INTERVENE SHOULD NOT BE GRANTED
AND NOW, comes the Civil Service Commission of the Borough of Carlisle
("Commission"), by through its counsel, Reed Smith LLP, and responds to the Court's April 19,
2004 Rule to Show Cause Order as follows:
1. Respondent, Civil Service Commission of the Borough of Carlisle, is an agency of the
Borough statutorily mandated to hear appeals of certain disciplinary actions taken by
Borough Council. 53 P.S. §§ 46171 et sue.
2. The potential Intervenor in this matter, the Borough of Carlisle ("Borough"), is a
Pennsylvania borough with principal offices at 53 West South Street, Carlisle,
Pennsylvania, 17013.
3. The Borough employed petitioner Thomas L. Day ("Petitioner") as a police officer until
May 8, 2003, when the Borough Council voted to terminate his employment.
4. Petitioner appealed his termination to the Respondent, Carlisle Borough Civil Service
Commission ("Commission"). On March 1, 2004, the Commission issued a decision
upholding the Borough's decision to terminate Petitioner's employment.
5. Petitioner has filed a petition for review and named the Commission as the Respondent.
6. The Commission submits that the Borough's Petition to Intervene should be granted.
EXHIBIT "A"
Reed Smith LLP
r.
By:
Joseph C. Rudolf
I.D. No. 44189
Amy Z. Snyder
I.D. No. 88899
Reed Smith UP
2500 One Liberty Place
1650 Market Street
Philadelphia, PA 19103
(215) 851-8100
Attorneys for Respondent,
Civil Service Commission of the Borough
of Carlisle
Dated: April 29, 2004
THOMAS L. DAY, JR.,
Petitioner
vs.
CIVIL SERVICE COMMISSION OF
THE BOROUGH OF CARLISLE,
Respondent
And
BOROUGH OF CARLISLE,
Intervenor
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
NO. 04- 1346 CIVIL TERM
PETITIONER'S RESPONSE TO RULE TO SHOW CAUSE WHY PETITION TO
INTERVENE SHOULD NOT BE GRANTED
AND NOW this 30`h day of April, 2004, comes Petitioner, Thomas L. Day, Jr.,
by and through his attorney, Joseph D. Buckley, Esquire, and responds to the Court's
Rule to show cause as follows:
1. The Borough of Carlisle's Petition to Intervene should be granted.
EXHIBIT "B"
1237 Holly Pike
Carlisle, PA 17013
(717) 249-2448
VERIFICATION
I verify that the statements contained herein are true and correct. I understand that false
statements herein are made subject to the penalties of 18 Pa.C.S.A. §4904, relating to unworn
falsification to authorities.
Dated: ROJV
CERTIFICATE OF SERVICE
I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams & Otto, hereby
certify that a copy of the foregoing Petition to Make Rule Absolute was served this date by
depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as
follows:
Joseph D. Buckley, Esquire
1237 Holly Pike
Carlisle, PA 17013
Joseph C. Rudolf, Esquire
2500 One Liberty Place
1650 Market Street
Philadelphia, PA 19103-7301
MARTSON DEARDORFF WILLIAMS & OTTO
Y
T to D. Eckenroad
Ten East High Street
Carlisle, PA 17013
(717) 243-3341
Dated: May 7, 2004
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F WILES ATAFILE\CadisleBmugh3046/0ocum nmt 004U19.pleadnotice
Creaed 5/7/04 2S 31PM
Revised: 517/04 2:32PM
THOMAS L. DAY, JR.,
Petitioner
V.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL SERVICE COMMISSION OF
THE BOROUGH OF CARLISLE,
Respondent NO. 04-1346 CIVIL TERM
V.
BOROUGH OF CARLISLE,
Intervenor
NOTICE TO PLEAD
TO: THOMAS L. DAY, JR., Petitioner, and his attorney, JOSEPH D. BUCKLEY, ESQUIRE
YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ENCLOSED NEW MATTER
WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF, OR A DEFAULT JUDGMENT MAY
BE ENTERED AGAINST YOU.
MARTSON DEARDORFF WILLIAMS & OTTO
B
Edward L. Schorpp, Esquire
Solicitor for the Borough of Carlisle
Ten East High Street
Carlisle, PA 17013
(717) 243-3341
Date:1009ye7, ';??
OF :\ ILES\DATA LE\CarlWeROmu h30 6fi cum a\2004\319.appealwswer
Cr=ed'. 412/04 10.02AM
Revised'. 4n104 9'.34AM
3046319
THOMAS L. DAY, JR.,
Petitioner
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
CIVIL SERVICE COMMISSION OF
THE BOROUGH OF CARLISLE,
Respondent
NO. 04-1346C EVIL TERM
V.
BOROUGH OF CARLISLE,
Intervenor
RESPONSE OF THE BOROUGH OF CARLISLE TO
PETITION FOR REVIEW AND REQUEST FOR HEARING
AND NOW, comes the Borough of Carlisle, Intervenor in the within matter, by and through
its Solicitor, Edward L. Schorpp, Esquire, and answers the Petition for Review and Request for
Hearing as follows:
Admitted in part and denied in part. It is admitted that this Court has jurisdiction of
some, but not all, of the issues raised in this matter; see New Matter herein. Reference to the cited
statutory authority for jurisdiction is a conclusion of law requiring no answer herein.
2. Admitted.
3. Admitted in part and denied in part. It is admitted that Petitioner, Thomas L. Day,
Jr. (herein "Day"), was employed by the Borough of Carlisle (herein, the "Borough") as a police
officer until his dismissal in May 2003, which dismissal is the subject matter of the within appeal.
4. Admitted in part and denied in part. It is admitted that Petitioner was dismissed on
the date stated. It is denied that Petitioner properly and accurately states the basis of his dismissal,
which basis is properly set forth in the Decision of the Civil Service Commission of the Borough of
Carlisle (herein, the "Commission"), which is attached to the Appeal Petition and which speaks for
itself.
5. Admitted.
6. Denied as stated. The Commission held one hearing which extended over many days
of testimony. The remaining averments of this paragraph are admitted.
7. Denied. The averments of Paragraph 7, and of all of its sub-parts, are denied as being
conclusions of law to which no answer is required. To the extent that answer is required, it is
averred that the adjudication did not violate any of Day's constitutional rights. Further answer is
provided as follows:
a. Admitted in part and denied in part. It is admitted that the hearing was
closed. The averments that Day's constitutional rights or legal rights were violated
are conclusions of law requiring no answer.
b. Denied. It is denied that the Commission and its agents evidenced partiality
or were, in fact, biased in favor of any party. Day complains of the treatment
accorded his counsel because of his un-lawyerly conduct and inappropriate behavior.
Under the circumstances, the Commission members and their counsel exhibited
tremendous patience and impartiality, notwithstanding Day's counsel's inappropriate
and badgering conduct. The averments that Day's constitutional rights or legal rights
were violated are conclusions of law requiring no answer.
C. Admitted in part and denied in part. It is admitted that witnesses were
sequestered and that the Chief of Police was present for all testimony, just as was
Day. The Borough, as an employer-party, was entitled to have a representative
present, just as Day, as the affected employee, was entitled to be present. It is noted
that Day testified and was present for the entire proceedings, thus accorded the same
privilege as the Borough. The averments that Day's constitutional rights or legal
rights were violated are conclusions of law requiring no answer.
d. Denied. After reasonable investigation, the Borough is without knowledge
or information sufficient to form a belief as to the truth of these averments and the
same are therefore denied. By way of further answer, the Carlisle Borough Manager,
as chief executive and administrative officer of the Borough and in consultation with
the chairman of the Commission, did make administrative arrangements for the
employment of counsel, chosen by the Commission and not by the Borough, to
advise it in the proceedings. The averments that constitutional rights were violated
are conclusions of law requiring no answer herein. Day is precluded, as a matter of
law, from raising this issue for the first time on appeal, as he did not raise it below.
Further, even though the Commission selected its counsel, as a matter of law and
under the statutory provisions of the Pennsylvania Borough Code, the Borough was
authorized to select counsel to advise the Commission.
e. Admitted in part and denied in part. It is admitted that counsel for the
Borough did inadvertently and unknowingly provide the 18 pages to the court
reporter. Notwithstanding, after proper voir dire, the Commission members affirmed
their ability to remain impartial in the proceedings and to set aside the information
contained in the pages. More importantly, all of 1:he substantive matters contained
in those documents were introduced into the record at varying stages of the
proceedings. The averments that Petitioner's constitutional rights or legal rights were
violated are conclusions of law requiring no answer.
f. Denied. The Decision of the Commission speaks for itself. The remaining
averments constitute conclusions of law concerning evidentiary matters. The
averments that Petitioner's constitutional rights or legal rights were violated are
conclusions of law requiring no answer.
g. Denied. Day's conduct was not in furtherance of union activity and his
speech was not protected under constitutional precepts. The speech concerned
matters that were of no current importance to the public and did not outweigh the
Borough's interests as his employer. The averments that his constitutional rights or
legal rights were violated are conclusions of law requiring no answer.
h. Denied. The Borough avers that the court lacks jurisdiction to hear Day's
averments in this subparagraph, as exclusive jurisdiction lies with the Pennsylvania
Labor Relations Board. Notwithstanding, his conduct was not in furtherance of
union activity and his speech was not protected under constitutional precepts. The
averments that his constitutional rights or legal rights were violated are conclusions
of law requiring no answer.
8. Denied. The averments of Paragraph 8 and each of its sub-parts are conclusions of
law requiring no answer herein. By way of further answer, the Borough responds as follows:
a. Admitted in part and denied in part. It is admitted that the hearing was closed
to persons, including Day's family. The remaining averments are conclusions of law
to which no answer is required.
b. Denied. These averments are conclusions of law to which no answer is
required. Further, the subject matter of these averments lie within the exclusive
jurisdiction of the Pennsylvania Labor Relations Board and not this court.
C. Denied. It is denied that the Borough made any admissions as stated. The
remaining averments are conclusions of law to which no answer is required.
d. Denied. The averments of Paragraph 7c of this answer are incorporated
herein by reference.
e. Denied. These averments are conclusions of law to which no answer is
required.
f. Denied. These averments are conclusions of law to which no answer is
required.
g. Denied. These averments are conclusions of law to which no answer is
required.
h. Denied. These averments are conclusions of law to which no answer is
required.
i. Denied. These averments are conclusions of law to which no answer is
required.
9. Denied. The averments of Paragraph 9, and substantially each of its sub-parts, are
conclusions of law requiring no answer herein. By way of further answer, the Borough responds as
follows:
a. Admitted. By way of further answer, the Commission properly closed the
hearing.
b. Denied. These averments are conclusions of law to which no answer is
required.
C. Denied. These averments are conclusions of law to which no answer is
required. Day has failed to preserve this issue by not raising it below. Further, it is
denied that any ex parte communications occurred or that the Commission became
biased against Day.
d. Denied. These averments are conclusions of law to which no answer is
required. Day has failed to preserve this issue by not raising it below. Further, it is
denied that any one acting on behalf of the Commission acted as a prosecutor. Day
was not properly represented by his counsel, notwithstanding the extreme leniency
afforded him throughout the hearing.
e. Admitted in part and denied in part. It is admitted that no oral argument was
afforded either side. It is denied that any violation of law occurred in this respect.
10. Denied. The averments of Paragraph 10 are conclusions of law requiring no answer
herein.
11. Denied. The averments of Paragraph 11 are conclusions of law requiring no answer
herein.
WHEREFORE, Intervenor, the Borough of Carlisle, demands that this appeal be dismissed.
ADDITIONAL TESTIMONY
12. Denied. The averments with respect to the request to take additional testimony are
denied factually and are waived as a matter of law.
a. Denied. The attorney for the Commission was selected by the Commission.
Day has waived this issue by not raising it below, thus failing to preserve it on
appeal. Notwithstanding, under the law, the Borough Council, acting through the
Borough Manager, has the full authority to select and retain counsel for the
Commission.
b. Denied. There were no ex parte communications between any "agents" of the
Borough and counsel for the Commission. Notwithstanding, Petitioner failed to
assert this claim before the Commission and, under the applicable the law, the issue
is waived for all purposes.
C. Admitted in part and denied in part. It is admitted that certain incompetent
evidence was properly excluded by the Commission. It is denied that any probative
evidence bearing on the relevant issues has arisen since the close of Petitioner's case.
A bald, unspecific allegation that "additional evidence has arisen," without a
demonstrable showing that such evidence would have made a difference in the
outcome of the case is insufficient basis to order additional testimony. Day simply
seeks to go on a fishing expedition because he received an adverse decision below.
WHEREFORE, Intervenor demands that the request to take additional testimony be denied
and that the Court proceed to decide the matter on the full and complete record developed by the
Commission.
NEW MATTER
13. Day failed to make any objection before the Commission that the tribunal was biased
against him or that its counsel was acting in a prosecutorial role. He may not assert these issues for
the first time on appeal.
14. Day failed to make any objection before the Commission that the Borough improperly
selected its counsel, which is denied, or that improper ex parte statements were made to counsel for
the commission, which is also denied. He may not assert these issues for the first time on appeal.
15. This court lacks jurisdiction to entertain any claims relating to "union protected
speech," as the Pennsylvania Labor Relations Board has exclusion jurisdiction over such matters.
16. The record may not be reopened for the reasons Day claims. He may not now try to
build a record based upon issues not properly preserved below. He is precluding from asserting
those claims. Further, Day has failed to provide specific facts which would enable the court to glean
from his petition any arguable basis for re-opening the record.
17. In addition, Day's petition has not sufficiently set forth any compelling reason to
justify developing "additional evidence," not with respect to any compelling nature of the evidence,
nor any compelling justification for not having introduced the evidence before the Commission in
the first instance. Day has failed to provide specific facts which would enable the court to glean
from his petition any arguable basis for re-opening the record.
MARTSON DE kRDORFF WILLIAMS & OTTO
B /
Edward L. chorpp, Esquire
Solicitor for the Borough of Carlisle
Ten East High Street
Carlisle, PA 17013
(717) 243-3341
Date: 147, 2004
VERIFICATION
I verify that the statements contained herein are true and correct. I understand that false
statements herein are made subject to the penalties of 18 Pa.C.S.A. §4904, relating to unswom
falsification to authorities.
Dated: 7
CERTIFICATE OF SERVICE
I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams & Otto, hereby
certify that a copy of the foregoing Response of the Borough of Carlisle to Petition for Review and
Request for Hearing was served this date by depositing same in the Post Office at Carlisle, PA, first
class mail, postage prepaid, addressed as follows:
Joseph D. Buckley, Esquire
1237 Holly Pike
Carlisle, PA 17013
Joseph C. Rudolf, Esquire
2500 One Liberty Place
1650 Market Street
Philadelphia, PA 19103-7301
MARTSON DEARDORFF WILLIAMS & OTTO
T ' 'a D. Eckenroad
Ten East High Street
Carlisle, PA 17013
(717) 243-3341
Dated: 1 a3coy
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THOMAS L. DAY, JR., IN THE COURT OF COMMON PLEAS OF
Petitioner CUMBERLAND COUNTY, PENNSYLVANIA
V.
CIVIL SERVICE COMMISSION OF
THE BOROUGH OF CARLISLE,
Respondent
V.
BOROUGH OF CARLISLE,
Intervenor
NO. 04-1346 CIVIL TERM
MAY X0 2004
ORDER OF COURT
AND NOW, this day of 2004, upon consideration ofthe within
Petition, the Rule to Show Cause heretofore iss the within action is made absolute and the
Petition to Intervene of the Borough of Carlisle is hereby granted.
Xd"ward L. Schorpp, Esquire,
Borough of Carlisle
L/Toseph Rudolf, Esquire,
Civil Service Commission of the Borough of Carlisle
VJoseph D. Buckley, Esquire,
Thomas L. Day, Jr.
BY THE COURT
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THOMAS L. DAY, JR., : IN THE COURT OF COMMON PLEAS OF
Petitioner : CUMBERLAND COUNTY, PENNSYLVANIA
V.
CIVIL SERVICE COMMISSION OF :
THE BOROUGH OF CARLISLE,
Respondent : NO. 04-1346 CIVIL TERM
V.
BOROUGH OF CARLISLE,
Intervenor
REPLY TO NEW MATTER OF CIVIL SERVICE COMMISSION
And now thisAay of May, 2004, comes Petitioner, by and through his counsel,
Joseph D. Buckley, Esquire and Replies to the Respondent C'ommission's New Matter as
follows:
1. Admitted in part, denied in part. It is admitted that hearings are supposed to be
conducted in accordance with certain statutes, rules and regulations and constitutional
guarantees. It is denied that the hearing in this case was so conducted.
2. Denied. This is a mischaracterization of said section 753(a) of the Local Agency Law.
The complete sections speaks for itself and provides a general rule and an exception
to the general rule which has been accepted on numerous occasions by the courts of
this Commonwealth. Matters may be raised upon appeal. which were not raised at the
hearing below if "allowed by the court upon good cause shown." Bias, bad faith,
undisclosed ex parte communications, actions of a hearing officer acting as a second
prosecutor are all such good causes.
3. Denied Petitioner through counsel during the hearing below objected to the constant
interrupting of counsel for the Commission and questioned exactly what his role was
in the proceeding. Bias, bad faith, actions of a hearing officer amounting to acting as
a second prosecutor and undisclosed ex parte communications on the part of a hearing
officer need not be raised at the hearing, and may be raised on appeal.
4. Admitted. The rules of the Commission set how, if and when an attorney may be
hired. Petitioner did not become aware that the Borough hand selected a counsel for
the commission and that the Borough's agents or officers had undisclosed ex parte
communications with the attorney prior to and during the hearing until after the close
of the hearing.
5. Admitted for the reasons stated in paragraph 4 above.
6-12. Respondent's averments are conclusions of law to which no response is required
WHEREFORE Petitioner requests this court to reverse the decision of the Civil Service
Commission, reinstate the Petitioner with full back pay, benefits and interest.
Attorney for the Petitioner
Supreme Court ID # 38444
1237 Holly Pike
Carlisle, PA 17013
(717) 249-2448
VERIFICATION
The undersigned, Thomas L. Day, Jr., hereby swears or affirms that the
statements made in the foregoing Reply to New Matter of Civil Service Commission are
true and correct to the best of his knowledge, information and belief.
Date: -?___-" 7ti
Thomas L. Day, Jr.
THOMAS L. DAY, JR., IN THE COURT OF COMMON PLEAS OF
Petitioner CUMBERLAND COUNTY, PENNSYLVANIA
V.
CIVIL SERVICE COMMISSION OF :
THE BOROUGH OF CARLISLE,
Respondent NO. 04-1346 CIV:[L TERM
V.
BOROUGH OF CARLISLE,
Intervenor
CERTIFICATE OF SERVICE
I HEREBY CERTIFY THAT A TRUE AND CORRECT COPY OF REPLY TO NEW
MATTER OF CIVIL SERVICE COMMISSION, WAS DULY SERVED UPON THE
FOLLOWING PERSONS OR ENTITIES IN THE ABOVE CAPTIONED MATTER:
BY UNITED STATES FIRST-CLASS MAIL, POSTAGE PREPAID:
Edward L. Schorpp
10 E. High Street
Carlisle, PA 17013
Joseph C. Rudolf, Esquire
Reed Smith, LLP
2500 One Liberty Place
1650 Market Street
Philadelphia, PA 19103
Date: May 25, 2004
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Ch,. Bennecoff, assist t to
Joseph D. Buckley, Esquire
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THOMAS L. DAY, JR.,
Petitioner
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
CIVIL SERVICE COMMISSION OF
THE BOROUGH OF CARLISLE,
Respondent
NO. 04-1346 CIVIL TERM
V.
BOROUGH OF CARLISLE,
Intervenor
REPLY TO NEW MATTER OF BOROUGF[ OF CARLISLE
t1
And now thisZS day of May, 2004, comes Petitioner, by and through his counsel,
Joseph D. Buckley, Esquire and Replies to the Respondent :Borough of Carlisle's New
Matter as follows:
13. Denied as stated. Petitioner made a motion regarding the bias of the Commission and
asked that they recuse themselves during the hearing. Also Petitioner through counsel
during the hearing below objected to the constant interrupting of counsel for the
Commission and questioned exactly what his role was in the proceeding. Bias, bad faith,
actions of a hearing officer amounting to acting as a second prosecutor and undisclosed
ex parte communications on the part of a hearing officer need not be raised at the hearing,
and may be raised on appeal.
14. Admitted in part. Petitioner did not become aware that the Borough hand selected a
counsel for the commission and that the Borough's agents or officers had undisclosed ex
parte communications with the attorney prior to and during; the hearing until after the
close of the hearing. Such matters are proper to be raised at any time.
15. This averment is a conclusion of law to which no response is necessary.
16. Denied. Petitioner should be permitted to open the record. The record must be opened
to permit Petitioner to present the documentary evidence of the ex parte communications
as well as to permit the Petitioner and the Court to receive the evidence of the method by
which the Borough selected the counsel for the Commission and the statements
exchanged between the parties which had never been disclosed or known by Petitioner
until the after the hearing was closed. Bias, bad faith, actions of a hearing officer
amounting to acting as a second prosecutor and undisclosed ex parte communications on
the part of a hearing officer need not be raised at the hearing, and may be raised on
appeal.
17. Denied. Petition has alleged that the Borough through its agents or officers had ex
parte communications with the counsel for the Commission prior to and during the
hearing. The Borough admits that it did have communications with the counsel in that it
hired him for the Commission, a fact never disclosed or known to Petitioner until after
the close of the hearings. Further more, Petitioner has documentary evidence relating to
ex parte communications between the Borough through its agents or officers during the
hearing which was never disclosed by said counsel. Said documents disclose a casual
relationship between the Borough agents or officers and said counsel, and requests that
said counsel act in a manner adverse to the stated position of the Petitioner. Bias, bad
faith, actions of a hearing officer amounting to acting as a second prosecutor and
undisclosed ex parte communications on the part of a hearing officer need not be raised at
the hearing, and may be raised on appeal.
WHEREFORE Petitioner requests this court to reverse the decision of the Civil Service
Commission, reinstate the Petitioner with full back pay, benefits and interest.
Respectfully submitted.
Supreme Court ID # 38444
1237 Holly Pike
Carlisle, PA 17013
(717) 249-2448
VERIFICATION
The undersigned, Thomas L. Day, Jr., hereby swears or affirms that the
statements made in the foregoing Reply to New Matter of Borough of Carlisle are true
and correct to the best of his knowledge, information and belief.
Date: 91b/ 1
?` Thomas L. Day, Jr.
THOMAS L. DAY, JR., IN THE COURT OF COMMON PLEAS OF
Petitioner CUMBERLAND COUNTY, PENNSYLVANIA
V.
CIVIL SERVICE COMMISSION OF :
THE BOROUGH OF CARLISLE,
Respondent NO. 04-1346 CIVIL TERM
V.
BOROUGH OF CARLISLE,
Intervenor
CERTIFICATE OF SERVICE
I HEREBY CERTIFY THAT A TRUE AND CORRECT COPY OF REPLY TO NEW
MATTER OF BOROUGH OF CARLISLE, WAS DULY SERVED UPON THE
FOLLOWING PERSONS OR ENTITIES IN THE ABOVE CAPTIONED MATTER:
BY UNITED STATES FIRST-CLASS MAIL, POSTAGE PREPAID:
Edward L. Schorpp
10 E. High Street
Carlisle, PA 17013
Joseph C. Rudolf, Esquire
Reed Smith, LLP
2500 One Liberty Place
1650 Market Street
Philadelphia, PA 19103
Date: May 25, 2004
Cheryl Lu Bennecoff, assistant
Joseph D. Buckley, Esquire
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Created'. 628100 8:16"
Revised- 6130104 931AM
THOMAS L. DAY, JR.,
Petitioner
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
CIVIL SERVICE COMMISSION OF
THE BOROUGH OF CARLISLE,
Respondent
NO. 04-1346 CIVIL TERM
V.
BOROUGH OF CARLISLE,
Intervenor
MOTION OF THE BOROUGH OF CARLISLE FOR A
PROTECTIVE ORDER PROHIBITING PETITIONER'S DISCOVERY EFFORTS
AND NOW, comes the Borough of Carlisle (herein, Borough), Intervenor in the within
matter, by and through its Solicitor, Edward L. Schorpp, Esquire, and moves your Honorable Court
for a Protective Order prohibiting discovery upon the following:
Thomas L. Day, Jr., (herein, Day) was discharged from the Carlisle Borough Police
Force and appealed his dismissal to the Civil Service Commission ofthe Borough of Carlisle (herein,
Commission).
2. The Commission held a hearing, consisting of many days of testimony, which
generated a transcript of approximately 1,300 pages, not including the substantial number of exhibits
introduced during the hearing.
3. At the end of the hearing, the Commission closed the record, without objection of
Day or the Borough, and issued a written, comprehensive Decision in due course.
4. The Commission's Decision upheld Day's dismissal from the police force.
5. Day timely appealed the Commission's Decision to this Court.
In his appeal document, Day has requested that the Court take additional testimony
related to:
a. Selection of counsel for the Commission (See, paragraph 12a of the appeal
document);
b. Alleged improper ex parte communications between the Borough and the
Commission's counsel (See, paragraph 12b of the appeal document); and
c. Additional evidence concerning union meetings and membership which "has
arisen since the last hearing which is relevant" to the case (See, paragraph 12c
of the appeal document).
Subsequent to filing his appeal to this court, on. June 23, 2004, Day served the
Borough with a Notice to take depositions and for the production of documents; a copy of the
combined discovery request is attached as Exhibit "A."
8. The Borough has not agreed to open the record of the Commission's proceedings or
to engage in discovery.
Before the Commission, Day was given repeated and ample opportunity to present
probative evidence, and the record is devoid of any instance where; he attempted to present evidence
concerning the hiring of the Commission's counsel or supposed improper ex parte communications
by the Borough with him.
10. Day has not identified in the record where he attempted to introduce his claims of
improprietywith respect to the Commission's counsel, has not averred that he acquired this evidence
for the first time after the close of the record, has not properly raised his claims and has given no
valid basis for re-opening the record.
11. With respect to Day's assertion that, for the first time post-hearing, he now has
probative evidence concerning his union and its membership, those matters were and remain within
the exclusive knowledge and control of the union membership and are not and never have been
within the control and knowledge of the Borough.
12. The record clearly reflects that Day was active in his union (the Treasurer and Board
member) and that any such evidence would have been under his control and readily available to him
during the course of the proceedings before the Commission.
13. Notwithstanding, "certain evidence relating to the conduct of meetings and
membership of the Carlisle Police Association (the union)" (paragraph 12c of the appeal document),
whatever it may be, is completely irrelevant to unilateral action taken by the Borough, as Day's
2
employer, to dismiss him from the police force for conduct unbecoming an officer and disobedience
of orders.
14. Day has averred no specific facts to support his effort to re-open the record:
a. The union matters would have been readily available to Day pre-hearing, and
his failure to use due diligence to prepare his case is the cause of his present
fishing expedition;
b. The matters relating to the Commission's counsel, again not specifically
averred, amount to unsupported accusations without relation to when Day
first learned of them; and
c. Day's general Notice to "the Borough of Carlisle and/or its designated
representatives" to take depositions, without identifying the specific
deponents, is further evidence of his embarking upon a fishing expedition in
the hopes of opening the record.
15. The procedure before the Commission was governed by the Pennsylvania Borough
Code and the Pennsylvania Local Agency Law. See, 53P. S.§46191 and 2 Pa. C.S. § 551, et seq.
and § 754.
16. At no stage of these proceedings, whether pre-Commission hearing or on appeal, is
Day entitled to engage in discovery under either the dismissal procedure set forth in the Pennsylvania
Borough Code or the procedural provisions of the Pennsylvania Local Agency Law.
17. Day's attempted discoveryis an attempt to open the voluminous and complete record
of these proceedings.
18. When a full and complete record has been made, Day is not entitled as a matter of
right on appeal to introduce further evidence or to open the record.
19. Day's request to open the record is not properly before this Court.
20. This court has not issued an order opening the record of the Commission's
proceedings for any purpose whatsoever.
3
WHEREFORE, the Borough of Carlisle requests the entry of an order prohibiting
Thomas L. Day, Jr., from engaging in any discovery, releasing the Borough from any obligation to
submit to the present discovery Notice and refusing to open the record of the Commission's
proceedings for any purpose whatsoever.
Respectfully submitted,
MARTSON DEARDORFF WILLIAMS & OTTO
Edward L. Schorpp, Esquire
Solicitor, Borough of Carlisle
10 East High Street
Carlisle, PA 17013
717-243-3341
Date June 30, 2004
4
THOMAS L. DAY, JR., IN THE COURT OF COMMON PLEAS OF
Petitioner CUMBERLAND COUNTY, PENNSYLVANIA
V.
CIVIL SERVICE COMMISSION OF :
THE BOROUGH OF CARLISLE,
Respondent NO. 04-1346 CIVIL TERM
V.
BOROUGH OF CARLISLE,
Intervenor
NOTICE OF DEPOSITION and
PRODUCTION OF DOCUMENTS AND THINGS
TO: BOROUGH OF CARLISLE, Intervenor
PLEASE TAKE NOTICE that, pursuant to Pennsylvania Rule of Civil Procedure
4007. 1, Petitioner will take the depositions upon oral examination of the BOROUGH OF
CARLISLE AND/OR ITS DESIGNATED REPRESENTATIVES on August 5, 2004,
beginning at 10:00A.M., all at the offices of Joseph D. Buckley, Esquire, 1237 Holly
Pike, Carlisle, PA, before a Notary Public, or other person authorized to administer oaths,
for the purposes of discovery and/or use at argument, on all matters not privileged, which
are relevant and material to the issues and subject matter involved in the above-captioned
action, specifically the method used by the Borough in the selection of counsel for the
Borough's Civil Service Commission, and all communications the Borough and its
agents, officers, attorneys or employees, other than the members of the Civil Service
Commission, had or attempted to have with counsel for the Civil Service Commission
prior to, during or following the hearing in the matter of Thomas L. Day, Jr.
The Borough of Carlisle pursuant to Rules 4009.1, 4009.11 and 4009.12 is further
requested to produce the following documents and things for inspection and copying at
the deposition:
1. All documents (including but not limited to writings, electronically created
data, typewritten documents, printed documents, other compilations of data
from which information can be obtained, translated, or recovered into a
reasonable, usable form) relating to the selection or naming of counsel for the
Civil Service Commission, including resumes received, letters of
recommendation, retaining contract, agreements or any document from any
person relating to the selection or naming of the counsel for the Civil Service
Commission from May 1, 2003 through the present.
EXHIBIT "A"
2. All telephone records relating to any telephone calls made by the Borough, its
agents, employees, attorneys, officers or anyone acting on its behalf with the
exception of the members of the Civil Service Commission, whether made at
Borough offices, private law offices, private or Borough owned cellular
telephones, private telephones, including bills from telephone or cellular
telephone service providers to the law office of the counsel for the Civil
Service Commission, his private or office owned cellular telephone and/or his
private residential telephone or any telephone or similar device known to be
used by said counsel from May 1, 2003 through the present.
3. All electronic mail, documents (including but not limited to writings,
electronically created data, typewritten docurnents, printed documents, other
compilations of data from which information can be obtained, translated, or
recovered into a reasonable, usable form) or faxes sent or received by the
Borough of Carlisle, including its agents, officers, employees, attorneys
and/or any person or persons acting on its behalf to or from the counsel for the
Civil Service Commission from May 1, 2003 through the present date.
4. All documents (including but not limited to writings, electronically created
data, typewritten documents, printed documents, other compilations of data
from which information can be obtained, translated, or recovered into a
reasonable, usable form) delivered, mailed, faxed or given to counsel for the
Civil Service Commission by the Borough of Carlisle, its agents, officers,
employees, attorneys or any person or persons acting on its behalf from May
1, 2003 through the present.
5. All contracts or agreements approved by the Borough, its agents, attorneys,
officers or employees for the hiring of the counsel for the Civil Service
Commission.
The above-named persons are requested to appear with the requested documents at
the aforesaid time and place, and submit to examination under oath.
Date:
rN.uomey ror reurioner
I.D. No. 38444
1237 Holly Pike
Carlisle, PA 17013
(717) 249-2448
VERIFICATION
I verify that the statements contained herein are true and correct. I understand that false
statements herein are made subject to the penalties of 18 Pa.C.S.A. §4904, relating to unworn
falsification to authorities.
Edward L. Schorpp, Esquir
Dated: June 30, 2004
CERTIFICATE OF SERVICE
I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams & Otto, hereby
certify that a copy of the foregoing Motion of the Borough of Carlisle for a Protective Order
Prohibiting Petitioner's Discovery Efforts was served this date by depositing same in the Post Office
at Carlisle, PA, first class mail, postage prepaid, addressed as follows:
Joseph D. Buckley, Esquire
1237 Holly Pike
Carlisle, PA 17013
Joseph C. Rudolf, Esquire
2500 One Liberty Place
1650 Market Street
Philadelphia, PA 19103-7301
MARTSON DEARDORFF WILLIAMS & OTTO
6Bj V?J
a D. Eckenroad
Ten East High Street
Carlisle, PA 17013
(717) 243-3341
Dated: June 30, 2004
JUL 0 1 2004 k
THOMAS L. DAY, JR.,
Petitioner
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
CIVIL SERVICE COMMISSION OF
THE BOROUGH OF CARLISLE,
Respondent
V.
BOROUGH OF CARLISLE,
Intervenor
NO. 04-1346 CIVIL TERM
ORDER OF COURT
AND NOW, this day of upon consideration of
Thomas L. Day, Jr., is prohibited from t,,2004, the within Motion,
n any discovery in this appeal. The Borough of
Carlisle is excused from complying with the discovery Notice ofJune 22, 2004, and from anyfurther
discovery efforts absent further order of Court.
Further, it appearing that insufficient cause having been presented to re-open the record, this
appeal shall be decided upon the record filed by the Civil Service Commission of the Borough of
Carlisle.
BY THE COURT
• J.
f Petitioner, Thomas L. Day, Jr.
`?oseph D. Buckley, Esquire
/for Respondent, Civil Service Commission of the Borough of Carlisle
Joseph C. Rudolf, Esquire
/r Intervenor, Borough of Carlisle
Edward L. Schorpp, Esquire
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten tten and submitted in duPu
TO THE PROTHONOTARY OF CUMBERLAND COUNTY: next Argument Court.
Please list the within matter for the ------
CAPTION OF CASE j;
(entire caption ?t be stated in funk
Thomas L. Day, Jr. Petitioner
VS.
Civil Service Commission of
The Borough of Carlisle Respondent
VS.
Borough of Carlisle
Intervenor
No. 0404.
(i.e.. Plaintiff';; motion for new trial, defendant's
state matter to be argued al from Decision of Civil Service Comission
daisirrer to ccnVlaint, etc.): Apps
2. Identify counsel who will argue case:
(a) for Petitioner:
Address:
Joseph D. Buckley, Esq.
1237 Holly Pike, Carlisle,
PA 17013
for Respondent: Joseph C. Rudolf, Esq.
(b) 2500 One Liberty Place
Philadelphia, PA 19103-7301
, Address: 1650 Market Street,
(c) for Intervenor: Edward L. Schorpp, Esq, isle, PA 17013
10 East High Street, Carl
3. I will notify all Parties in writing within two days that this case has
been listed for argument-
4 - Argument Court Date:
(Edward L.
September 22, 2004
CERTIFICATE OF SERVICE
I, Edward L. Schorpp, Esquire certify that a copy of the foregoing Praecipe for Listing Case
for Argument was served this date by depositing same in the Post Office at Carlisle, PA, first class
mail, postage prepaid, addressed as follows:
Joseph D. Buckley, Esquire
1237 Holly Pike
Carlisle, PA 17013
Joseph C. Rudolf, Esquire
Reed Smith
2500 One Liberty Place
1650 Market Street
Philadelphia, PA 19103-7301
MARTSON DEARDORFF WILLIAMS & OTTO
Byc'??^E? /
Edward L. Scho 5p, Esquire
Ten East High Street
Carlisle, PA 17013
(717) 243-3341
Dated: August 30, 2004
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THOMAS L. DAY, JR. IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
CIVIL SERVICE COMMISSION OF
THE BOROUGH OF CARLISLE
V.
BOROUGH OF CARLISLE : 04-1346 CIVIL TERM
IN RE: APPEAL FROM ORDER OF THE CIVIL SERVICE COMMISSION
OF THE BOROUGH OF CARLISLE
BEFORE BAYLEY, J.
ORDER OF COURT
AND NOW, this /I f- day of February, 2005, the appeal of Thomas L. Day
from an order of the Civil Service Commission of the Borough of Carlisle dated March
1, 2004, IS DISMISSED.
By the
-ucr?Edgar B. Bayley, J.
Joseph D. Buckley, Esquire 0? a o2?i?/o o'
For Thomas L. Day
Joseph C. Rudolf, Esquire t J^?>
For the Civil Service Commission > /?''\
Edward L. Schorpp, Esquire
For Borough of Carlisle , A'rN,4---k :sal
THOMAS L. DAY, JR. IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
CIVIL SERVICE COMMISSION OF
THE BOROUGH OF CARLISLE
V.
BOROUGH OF CARLISLE : 04-1346 CIVIL TERM
IN RE: APPEAL FROM ORDER OF THE CIVIL SERVICE COMMISSION
OF THE BOROUGH OF CARLISLE
BEFORE BAYLEY, J.
OPINION AND ORDER OF COURT
Bayley, J., February 11, 2005:--
On May 8, 2003, Thomas L. Day, Jr., a corporal with fifteen years of service in
the Borough of Carlisle Police, was dismissed by the Carlisle Borough Council. Day
appealed to the Civil Service Commission of the Borough of Carlisle. He requested a
public hearing that was denied. After conducting six closed hearings, the Civil Service
Commission, on March 1, 2004, entered an order, supported by a written opinion,
upholding the dismissal of Day on the grounds of "disobedience of orders," and
"conduct unbecoming an officer." Day filed an appeal in this court. The Borough of
Carlisle intervened. No additional evidence was taken. The issues were briefed and
argued on September 22, 2004.
The standard of review is set forth by the Commonwealth Court of Pennsylvania
04-1346 CIVIL TERM
in Moorehead v. Civil Service Commission of Allegheny County, 769 A.2d 1233
(Pa. Commw. 2001):
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. Section 754 of the Local Agency ILaw, 2 Pa.C.S. § 754; Civil
Service Commission v. Poles, 132 Pa.Cmwlth. 593, 573 A.2d 1169
(1990), petition for allowance of appeal granted, 527 Pa. 657, 593 A.2d
427 (1991), 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. Id.
A reviewing court will examine, but not weigh, 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. Id.
The court may not substitute its judgment for that of the commission. Id.
A summary of the facts found by the Civil Service Commission that support its
decision are as follows. On January 3, 2002, Day attended a meeting for police
supervisors conducted by Carlisle Borough Police Chief Stephen Margeson. The
purpose of the meeting was team building and management training for the ranking
members of the Carlisle Police Department. Margeson reviewed the Department's
mission statement, and discussed how to handle disagreements and complaints within
the Department. He said that officers were not to openly ridicule or complain about
others, but to take complaints through the proper channels. Contrary actions would be
considered conduct unbecoming an officer. In late January, 2003, Corporal Day, in his
own words, "blew-up" in front of two subordinates, Patrolman Haggerty and Dispatcher
Burns, and a superior, Sergeant Guido. The incident occurred in the communications
-2-
04-1346 CIVIL TERM
room of the Carlisle Police Department. Day accused Detective Smith, of the Carlisle
Borough Police, of holding a gun to Smith's girlfriend's head, falsifying time records,
and taking money and drugs during an investigation. He said that Chief Margeson
knew about Smith's conduct, and covered it up. After an internal investigation,
Margeson determined that Day's allegations were unsubstantiated. The Chief had prior
knowledge of an investigation conducted by the Cumberland County District Attorney
regarding the allegations of the theft of money and drugs. That investigation
exonerated Smith. Margeson reviewed a police report frorn another jurisdiction of the
alleged incident with a gun that had occurred five years earlier. That investigation
concluded that no gun was pointed at the woman's head by Smith, and that she did not
feel threatened by him. Based on his investigation, Margeson met with Day on April 24,
2003, and told him his findings. In a letter dated April 24, 2003, Margeson informed
Day that he would institute discipline, which he did, and set forth that any repetition of
his behavior or other misconduct will result in termination.
Three days later on April 27, 2003, Day attended a meeting of his Union, the
Carlisle Police Association. During the meeting he requested financial support to
defend against the pending discipline. The request was tabled. After the meeting was
closed, some officers in the Department asked Day the reasons for the pending
discipline. Day said that he did not want to discuss things in front of certain officers,
and waited until they left. Then to three subordinate officers, Parson, Heredia and
Brewbaker, Day repeated the allegations he made in the communications room earlier
-3-
04-1346 CIVIL TERM
in the year. He further said that the name of Matthew Walters had been deleted from
the Metro files, which is the Police Department's computer data system, that only two
officers, Lieutenant Pfahl and Lieutenant Walters, who is Matthew's father, could make
the deletion, and that Pfahl had told him that he did not do it. Day told the officers they
could draw their own conclusions as to who did it. He alleged that the deletion of the
name from the Metro files was tampering with official records, and something to the
effect of "tell me that ain't a crime." Officer Parson informed Lieutenant Walters of the
conversation who reported it to Chief Margeson. After conducting an internal
investigation, Margeson initiated disciplinary proceedings against Day for this incident.
The Metro system is a police computer system utilized by thirty-eight law
enforcement agencies in the Harrisburg area. It is not avaiilable to the general public.
There are two levels of entries into the system: the dispatch section and the field report
section. The ability to make changes or to delete data is restricted to members of the
Police Department. While any officer in the Department may make changes or
deletions to the dispatch entries, only the Department's two lieutenants may delete
items from field reports. A master log, maintained in Harrisburg, indicates how a file
appeared before and after changes or deletions. A deletion of the name of Matthew
Walters from a dispatch entry was made by Sgt. Dzezinski of the Carlisle Police
Department. He deleted the name following a vehicle stop for which no citation was
issued. Lieutenant Walters never made any changes or deletions in the system
regarding his son Matthew.
-4-
04-1346 CIVIL TERM
The Civil Service Commission made the following decision:
As to the charge of disobedience of orders, the Borough
established that Margeson had clearly outlined the proper manner in
which to address complaints against fellow officers during the Shaffer
Park meeting of police supervisors held in January 2002. Based upon the
evidence submitted, the Commission concludes that Day disobeyed this
command twice. First, Day disobeyed Margeson's directive when he
made allegations against Smith to subordinates during a January,
2003 conversation with Sergeant Guido, Dispatcher Burns and
Patrolman Haggerty in the communications room. Both Dispatcher
Burns and Patrolman Haggerty were subordinate to Corporal Day.
Second, Day disobeyed Margeson's order on April 27, 2003, when he
repeated the allegations against Smith and implied to patrolmen
Heredia, Brewbaker and Parson that Lt. Walters deleted files from
the Metro system. Based upon this conduct, Council was justified in
terminating Day's employment.
Furthermore, the evidence before the Commission established that
Day's conduct after the Union meeting on April 27, 2003 directly
contradicted the directive that Margeson imposed on Day three days
earlier, on April 24, 2003. Specifically, after the incident in the
communications room, Margeson reminded Day of the appropriate
manner for an officer to raise his concerns about questionable conduct by
other officers, or dissatisfaction with department matters. Nonetheless,
Day ignored this order and again made allegations against superior
officers in front of subordinates after the Union meeting. As a result, it
was also appropriate for the Borough to terminate Day's employment for
his failure to obey Margeson's order of April 24, 2003.
The evidence presented by the Borough likewise supports the
charge that Day engaged in conduct unbecoming an officer. As stated
previously, conduct unbecoming may include any action which "adversely
affects the morale and efficiency of the police force or tends to destroy
public respect for, and confidence in, the police force." [Feliciano v.
Borough of Norristown, 758 A.2d at 295 (Pa. Commw. 2000)]. The
Commission has determined that during two separate instances, Day
alleged that one or more members of the Department engaged in
criminal or quasi-criminal conduct. The Commission finds Day's
behavior could, and in fact did create feelings of doubt among other
officers and affect the morale of the Department. For this reason, Day's
actions plainly fall within the realm of unbecoming conduct, for which
termination is an appropriate penalty. This conclusion is underscored by
the fact that Margeson not only warned his supervisory officers
-5-
04-1346 CIVIL TERM
during the January 2002 Shaffer Park meeting that airing complaints
outside the proper channels would be considered conduct
unbecoming, but Margeson explicitly warned Day in his April 24,
2003 letter that the consequence of engaging in similar behavior
would be termination. (Emphasis added.)
We will review the issues raised by Day in this appeal from the order of the Civil
Service Commission dated March 1, 2004.
1. THE NOTICE ISSUE.
The Borough Code sets forth the statutory grounds for a Borough Council to
remove a police officer. 53 P.S. § 46190. They include, "disobedience of orders or
conduct unbecoming an officer." Id. During the hearings before the Civil Service
Commission, Day objected to the introduction of any evidence concerning his
conversations in the communications room with Patrolman Haggerty, Dispatcher Burns
and Sergeant Guido in late January, 2003. He maintained that his conduct on that
occasion was outside the scope of the charges against him. The objection was
overruled.
On May 9, 2003, Borough Council notified Day in writing of its decision to
dismiss him from the police force. The letter, Exhibit C-1, set forth:
You are advised that the Carlisle Borough Council, in the presence of your
legal counsel, and by motion duly make and seconded during a public
meeting held on Thursday, May 8, 2003, unanimously voted to dismiss
you from the Carlisle Police Department. As cause for dismissal, the
Borough Council adopted and concurred with the charges outlined
in the letter to you from Chief Margeson, dated May 6, 2003; a copy of
that letter is attached and incorporated herein by reference. At that
meeting, Mayor Wilson indicated his concurrence in the charges outlined,
and conveyed his recommendation for dismissal. Specifically, the
Borough Council has determined that you engaged in conduct
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unbecoming an officer and that you disobeyed orders. (Emphasis
added.)
The attached letter of May 6, 2003 from Margeson to Day, set forth:
As you are aware an investigation into possible misconduct on your part
was recently initiated. I informed you of this investigation when we met on
May 5, 2003. 1 informed you there was the potential of disciplinary action
being taken against you if the alleged misconduct was substantiated.
This investigation has been completed. I have concluded that you did
engage in misconduct. Specifically, 1 have determined that you
committed the following offenses:
1. Conduct Unbecoming an Officer
2. Disobedience of Orders
The facts supporting this determination are as follows:
On April 27, 2003 at the Union Fire Company following a Police
Association meeting, you accused Lt. Barry Walters of the Carlisle Police
Department of deleting or altering Metro files (the official Carlisle Police
Department computerized record system) in which his son Matthew was
entered, in effect removing the name of Matthew Walters from official
department records. You made this accusation to three (3) Carlisle Police
Department patrol officers.
The allegation that Lt. Walters deleted or altered records or had any file or
record involving his son deleted or altered was investigated and is totally
unfounded.
By making these accusations you accused Lt:. Walters of misconduct and
possible criminal conduct. Such accusations to junior officers undermine
Lt. Walters, the Chain of Command and is an assault on the character of
Lt. Walters. This constitutes Conduct unbecoming an Officer.
The same actions support a charge of Disobedience of Orders. When we
met on April 24, 2003 1 directed you to use caution in what you said,
how you said it and who you said it to regarding actions that may be
taken against you. You were further advised, in writing, "that any
repletion of this behavior or other misconduct on your behalf will
result in dismissal."
Once again I am extremely disappointed that you would engage in such
conduct, especially after our April 24, 2003 meeting. Your actions on April
27, 2003 were again detrimental to the good of the order of the police
department and in fact disruptive to the efficient operation of the
department. Your actions continue to undermine the Chief of Police and
Chain of Command.
As a result of my determination, I have recommended to Mayor Wilson
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that you be dismissed from the Carlisle Police Department. The Mayor
supports my recommendation and will so recommend to Borough Council.
(Emphasis added.)
The referenced letter of April 24, 2003, from Margeson to Day, Exhibit B-7, set
forth:
As you are aware, an investigation into a case of possible misconduct on
your part was initiated recently. I informed you of this when we met on
March 28, 2003. 1 also informed you there was the potential of
disciplinary action being taken against you if the alleged misconduct was
substantiated.
Having completed this investigation, I have concluded that you did engage
in misconduct. Specifically, I have determined that you committed the
following offenses:
1. Conduct Unbecoming an Officer
2. Disobedience of Orders
3. Neglect or Violation of Official Duty
The facts supporting this determination are as follows:
In the latter part of January 2003, while on duty in the Carlisle Police
Department Communications Room, in the presence of Sgt. Michael
Guido, Officer John Haggerty and Dispatcher Robin Burns, you made
allegations of criminal conduct and misconduct against Detective
David Smith and others. You specifically said the following:
1. Det. Smith had stolen money from a drug investigation.
2. Det. Smith had committed fraud by padding his hours
when he was in fact working outside employment at a water plant
security job.
3. Det. Smith had held a gun to the head of a former
girlfriend and threatened to kill her.
You further stated "I know for a fact she reported it to the Chief and
he did nothing." Additionally you stated that Detective Nester and Lt.
Walters do the department internal investigations and they cover for
their friends, and they will allow the right people to get away with
anything. You made these statements in a loud, boisterous manner,
or in your words you "blew up."
In essence, you made criminal and misconduct allegations against
Detective Smith, then accused the Chief of Police, Lt. Walters and
Detective Nester of misconduct by knowingly covering it up and neglecting
to take appropriate action when we were aware of criminal conduct and
misconduct on the part of Detective Smith. I believe the evidence clearly
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supports my conclusion in this matter.
I am especially disappointed that you, holding a supervisory position,
would engage in such conduct. Your actions were unacceptable and
constitute Conduct Unbecoming an Officer. Your actions are
detrimental to the good order of the department and potentially
disruptive to the efficient operation of the department. Your actions
undermine the Chief of Police and Chain of Command.
I also concluded that you committed the offense of Neglect of Official
Duty and Disobedience of Orders based upon the fact that at multiple
command staff meetings you and other department members who hold
leadership positions within the department have been specifically directed
by me as to the appropriate manner in which to handle matters involving
problem behavior of other officers, dissatisfaction on your own part
regarding department matters or making negative comments about the
department or department members. You and other department
supervisors have been directed as to the proper manner to raise concerns
and complaints about department members and department operations.
Your actions in the case at hand were contrary to what is expected and
acceptable on the part of supervisory officers of the Carlisle Police
Department. In our meetings on this incident it appeared to me you [sic]
that you did not grasp that what you did was improper. I cannot
emphasize strongly enough how improper I think your actions were.
As a result of my determination, I have recommended to Mayor Wilson
that you be demoted to the rank of patrol officer and receive three (3)
day suspension without pay. The Mayor concurs with my
recommendation and will in fact make such recommendation to
Borough Council. I must also state that any repetition of this
behavior or other misconduct on your behalf will results in
dismissal. (Emphasis added.)
In City of Harrisburg v. Pickles, 89 Pa. Commw. 155 (1985), the City of
Harrisburg appealed a decision of an order of the Court of Common Pleas of Dauphin
County which reversed a decision of the Harrisburg City Council dismissing Officer
Pickles from his position with the Bureau of Police of the City of Harrisburg. City
Council found that Pickles was guilty of:
(a) conduct unbecoming an officer, because, after stopping behind the
suspect vehicle he exited his car, "instead of assuming a back-up position
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of cover or concealment....'; (b) failure to comply with orders, directives,
and regulations, (although Council did not specify what orders, directives,
and regulations he failed to follow); and (c) improper use, handling or
display of firearms. Council, in its determination of this last charge, relied
upon Public Safety Directive No. 5 which announces the policy that an
officer "exhaust all other reasonable means of apprehension and control
before resorting to use of deadly force and further provides "[i]t is also the
policy of the Bureau that members will not necessarily or unreasonably
endanger themselves in applying these guidelines to actual situations."
Additionally, Council considered the directive's establishment of the
defense of justification "when necessary to prevent death or serious bodily
injury to the officer or another...." Council found, however, that no such
justification existed, rejecting Officers Pickles' contention that the suspect
had turned toward him with an object in both hands, thus causing Pickles
to fire in self-defense.
On appeal, the trial court determined that the notice of the charges given to
Pickles was insufficient to comport with due process. The Harrisburg City Council had
notified Pickles of the charges by a letter dated March 17, 1983, which set forth:
You are being charged with the followung violation of the
Disciplinary Code of the Harrisburg Police Bureau ...
ARTICLE I-Conduct Unbecoming an Officer
Section 1.12-Repeated violations of departmental rules and
regulations or other course of conduct indicating that a member
has little or no regard for his/her responsibility as a member of the
Bureau of Police.
ARTICLE IV-Neglect of Duty
Section 4.05-Failure to comply with any Police Chiefs or Director
of Public Safety Orders, Directives, Regulations, etc., or any oral or
written orders of superiors.
ARTICLE V-Disobedience of Orders
Section 5.09-Improper use, handling or display of firearms.
The Commonwealth Court stated:
For guidance in determining what type of notice should be afforded a
discharged civil servant, we look to civil service law. In Wood v.
Department of Public Welfare, 49 Pa. Commonwealth Ct. 383, 411 A.2d
281 (1980) this Court held that a removal notice which gave as the reason
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for the personnel action "contained unsatisfactory work performance" was
insufficient to demonstrate compliance with a State Civil Service
Commission regulation requiring an adequate explanation for the removal
of a regular status employee. In Wood, we recognized that while a
"removal notice need not be drafted with the certainty of a bill of
indictment," it must "be framed in a manner which enables the
employee to discern the nature of the charges and adequately to
prepare a defense." Id. at 386, 411 A.2d at 283. Although the City is not
subject to State Civil Service Commission regulations, it, too, must provide
adequate due process notice. (Emphasis added.)
The Court, concluding that Pickles did not have adequate due process notice,
stated:
The charges in the March 17, 1983 letter apprise Officer Pickles of
virtually nothing. The first two charges in particular provide Pickles with
no more information than that given to the employee in Wood. Certainly a
defense could not be adequately prepared based upon such scant
information. (Emphasis added.)
In the case sub judice, while the written charges are convoluted because of
reference to other documents in the notification of dismissal by Borough Council dated
May 9, 2003, we are satisfied, that unlike the facts in Pickles, Day was informed not
only of the statutory grounds against him, but the reasons in support of those grounds.
The May 9, 2003 notice of dismissal made reference to Borough Council concurring in
the charges outlined in the letter to Day from Chief Margeson dated May 6, 2003. That
letter specifically sets forth not only the alleged facts of the! incident after the meeting of
the Carlisle Police Association on April 27, 2003, but also that Margeson advised Day in
writing on April 24, 2003, that he was going to seek disciplinary action against him
based on a letter written to Day that date. That April 24`h letter sets forth the specific
facts as to the incident in the latter part of January, 2003 in the communications room
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of the police department. When Day was given that letter on April 24th, Margeson also
told him he was going to seek discipline based on the communications room incident as
set froth in the letter. Accordingly, Day received written notice of the charges relating to
the incident in the communications room that was presented to Borough Council. The
notice was constitutionally sufficient, and the Civil Service Commission properly
reviewed those charges in Day's appeal from his dismissal by Borough Council.
II. THE CLOSED HEARING ISSUE.
Day filed a written request before the Civil Service Commission for an open
public hearing, which was denied. He maintains that was a denial of procedural due
process, and his right under the Pennsylvania Sunshine Act, 65 Pa.C.S. §§ 701-716, to
an open hearing.' Article IX of the General Municipal Law, providing for removal of
policemen, sets forth at 53 P.S. § 811, that the Act applies to the removal of policemen
of each Borough having a police force of less than three members and not to policemen
subject to "the Borough Code." Under that General Municipal Law, those policemen are
entitled to a public hearing before an appointing authority. 53 P.S. § 814. The Borough
Code, however, is applicable to the Borough of Carlisle which has a police force of
more than two members. The Code provides at 53 P.S. § 46191:
If the person ... removed shall demand a hearing by the [civil
service] commission, the demand shall be made to the commission ...
the commission shall grant him a hearing .. a stenographic record of the
' Day does not complain of the way in which the formal action was taken by the Civil
Service Commission in upholding his dismissal from the police department. Such
formal action is required under the Sunshine Act to be taken at a public meeting. City
of Harrisburg v. Pickles, supra.
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testimony taken at such hearing shall be filed with, and preserved by, the
commission.
This section, which is silent as to whether a hearing before a civil service
commission is open to the public, was discussed in Schmidt v. Borough of Baldwin,
82 Pa. Commw. Ct. 580 (1984). Appellant, a policeman in the Borough of Baldwin, was
discharged by the Borough. The officer appealed to a civil service commission. The
commission held an open hearing over the objection of the officer who claimed it was
error not to grant his request for a closed hearing under Section 46191 of the Borough
Code. The commission then vacated the discharge and imposed a one year
suspension in its place. The Allegheny County Court affirmed the decision of the
commission. Both parties appealed to the Commonwealth Court, which concluded:
A simple reading of the statute refutes Appellant's claim. The
charges were not dismissed, obviating any reliance which Appellant
attempts to place on the section. The decision of the Commission to
conduct an open hearing must stand absent a showing of an abuse
of discretion. (Emphasis added.)'
As to Day's procedural due process claim, the Supreme Court of the United
States in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2 18 (1976), set
forth the following factors to be considered in weighing the sufficiency of procedural due
process: "(1) the private interest that will be affected by official action; (2) the risk of
erroneous deprivation of such interest through the procedures used and the probable
value, if any, of additional or substitute safeguards; and (3) the Government's interest,
' There was no discussion of the Sunshine Act, presumably because there was a public
hearing.
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including the function involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would entail." There is nothing in the
record to conclude under the second prong that the closed hearings detrimentally
affected the process that Day was afforded. A complete record was made as required
by law. That record is now in the public realm. Day's right, to appeal is guaranteed.
The Sunshine Act, 65 Pa.C.S. §§ 701-716, at Section 702, provides:
(a) Findings.-The General Assembly finds that the right of the
public to be present at all meetings of agencies and to witness the
deliberation, policy formulation and decisionmaking [sic] of agencies
is vital to the enhancement and proper functioning of the democratic
process and that secrecy in public affairs undermines the faith of the
public in government and the public's effectiveness in fulfilling its role in a
democratic society.
(b) Declaration.-The General Assembly hereby declares it to
be the public policy of this Commonwealth to insure the right of its
citizens to have notice of and the right to attend all meetings of
agencies at which any agency business is discussed or acted upon
as provided in this chapter. (Emphasis added.)'
Section 704 of the Act provides:
Official action and deliberations by a quorum of the members of
an agency shall take place at a meeting open to the public unless
closed under section 707 (relating to exceptions to open meetings), 708
(relating to executive sessions) or 712 (relating to General Assembly
meetings covered). (Emphasis added.)
At Section 703, the definition of "Agency" includes a commission of a political
subdivision that includes a municipal body. "Agency business" is defined as:
The framing, preparation, making or enactment of laws, policy or
regulations, the creation of liability by contract or otherwise or the
' See Kennedy v. Upper Milford Township Zoning Hearing Board, 834 A.2d 1104
(Pa. 2003), as to this public policy.
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adjudication of rights, duties and responsibilities, but not including
administrative action. (Emphasis added.)
A "Meeting" is defined as:
Any prearranged gathering of an agency which is attended or
participated in by a quorum of the members of an agency held for the
purpose of deliberating agency business or a taking of official
action. (Emphasis added.)
"Official action" includes:
(1) Recommendations made by an agency pursuant to statute,
ordinance or executive order.
(2) The establishment of policy by an agency.
(3) The decisions on agency business made by an agency.
(4) The vote taken by any agency on any motion, proposal,
resolution, rule, regulation, ordinance, report or order. (Emphasis added.)
The Civil Service Commission of the Borough of Carlisle is an Agency because it
is a commission of a political subdivision. Its agency business in this case was the
adjudication of the rights of Officer Day as to his dismissal as a police officer by the
Borough of Carlisle.° The issue is whether the hearings in that adjudication were a
"meeting" of the Commission held for the purpose of "deliberating agency business or a
taking of official action" which requires, under Section 704, that it be open to the public
unless closed under Sections 707, 708 or 712. The Civil Service Commission and the
Borough of Carlisle argue that we need not address the "meeting" issue because even
if the Commission hearings constituted a "meeting" in which it deliberated agency
business, they were properly conducted in closed executive sessions under Section
Black's Law Dictionary, 7th Ed. 1999 defines "adjudication" to include, "The legal
process of resolving a dispute; the process of judicially deciding a case."
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708. Section 708 provides:
(a) Purpose.-An agency may hold an executive session for
one or more of the following reasons:
(1) To discuss any matter involving the employment,
appointment, termination of employment, terms and conditions of
employment, evaluation of performance, promotion or disciplining
of any specific prospective public officer or employee or current
public officer or employee employed or appointed by the
agency, or former public officer or employee, provided,
however, that the individual employees or appointees whose
rights could be adversely affected may request, in writing, that
the matter or matters be discussed at an open meeting. The
agency's decision to discuss such matters in executive session
shall not serve to adversely affect the due process rights granted
by law, including those granted by Title 2 (relating to administrative
law and procedure). The provisions of this paragraph shall not
apply to any meeting involving the appointment or selection of any
person to fill a vacancy in any elected office. (Emphasis added.)
Day was not an employee or public officer or former employee or public official
appointed by the Civil Service Commission. To characterize the Commission's
hearings on his appeal as discussions involving his employment or discipline is not a
reasonable interpretation of an executive session under Section 708. The Commission
hearings constituted an adjudication, not discussions.
In its brief, the Civil Service Commission cites three cases in support of the
position that its decision "to conduct an open hearing must stand absence a showing of
abuse of discretion." Preston v. Saucon Valley School District, 666 A.2d 1120 (Pa.
Commw. 1995), does not support its position because the issue was whether a private
vote of a school on an addendum providing for a salary increase was unenforceable
under the Sunshine Act. Mirror Printing Company, Inc. v. Altoona Area School
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Board, 148 Pa. Commw. 168 (1992) does not support the Commission's position
because it involved the refusal to disclose the basis of an agreement negotiated in a
properly held executive session of a school board concerning disciplinary action against
its teacher. In Jeske v. Upper Yoder Township, 44 Pa. Commw. Ct. 13 (1979), a
police officer appealed from an order of the Court of Common Pleas of Cambria County
affirming his dismissal from the Upper Yoder Township Police Department. The board
of supervisors met in an executive session to consider charges by the police chief that
the policeman should be dismissed. During that session they fixed a date for a hearing
on the charges and suspended the officer pending that hearing. The officer requested a
public hearing which was granted. After the public hearing, the board dismissed the
officer. On appeal the officer claimed that the board violated the Sunshine Act by
initially voting to suspend him in executive session. At the time, the Sunshine Act at 65
P.S. Section 262 provided that "[n]o formal action shall be valid unless such formal
action is taken during a public meeting." Section 263 authorized an executive session
during a properly constituted public meeting for the purpose of "[c]onsidering dismissal
or disciplining of, or hearing complaints or charges brought against a public elected
officer, employee, or other public agent unless such person requests a public hearing."
The Commonwealth Court concluded that the decision to suspend the officer, pending
the outcome of the public disciplinary proceedings, was authorized by the General
Municipal Law at 53 P.S. § 814. Therefore, Jeske does riot support the Commission's
position.
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The legislature, in defining a "meeting" in the Sunshine Act could easily have
included an "adjudication" or "hearing" in its definition.' Looking at the Act as a whole
and the definition of "meeting" specifically, we conclude that a hearing is not a
"meeting" held for the purpose of "deliberating agency business or a taking of official
action." The Commission deliberated after the six hearings were concluded, and then
took official action by voting to uphold the dismissal of Day by Borough Council.
Accordingly, there is no requirement under the Sunshine Act that the hearings
conducted by the Civil Service Commission be open to the public.
Since the Borough Code at 53 P.S. 46191 is silent as to whether the hearings
before a Civil Service Commission are open or closed to the public, and since the
charges upon which Borough Council dismissed Day invollved allegations of wrongful
conduct on the part of other officers of the police force, and the inner workings of the
Department, the decision of the Civil Service Commission to conduct closed hearings
was not an abuse of discretion. As it turned out, the allegations Day made were
determined to be unsubstantiated. All of the Commission's findings have now become
public.
III. THE SEQUESTRATION ISSUE.
Day claims that he was prejudiced by the refusal of the Civil Service Commission
to sequester Chief Margeson during the hearings. Margeson was the last government
' For example, the Pennsylvania Municipalities Planning Code at 53 P.S. Section 10908
governs "Hearings" before zoning hearing boards.
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witness. Borough Council designated Margeson as its representative before the
Commission as allowed by 2 Pa.C.S. Section 552, which provides, "Any party may be
represented before a local agency." The Civil Service Commission did not abuse its
discretion in not sequestering Borough Council's representative and the officer who
brought the charges against Day.
IV. THE SOLICITOR ISSUE.
The Civil Service Commission was represented by an independent attorney
retained by Borough Council pursuant to the Borough Code at 53 P.S. § 46116, which
provides:
The legal matters of the borough shall be under the control of the borough
solicitor, and no department or officer of the borough, except as here and
otherwise provided shall employ an additional counsel without the assent
or ratification of the council ...
The assignment of independent counsel to the Commission complied with the law and
Day's right to due process. See Donnon v. Downingtown Civil Service
Commission, 3 Pa. Commw. 366 (1971).
V. THE DOCUMENTS ISSUE.
During the hearings, the Solicitor for the Borough Council introduced into
evidence Exhibit B-7, which were minutes of a Borough Council meeting on May 8,
2003. The Solicitor gave Day's counsel a copy of the minutes. Exhibit B-7 contained
an eighteen page attachment, not included in the copy given to Day, that was
inadvertently included by the Solicitor. Exhibit C-18. All parties agree the eighteen
pages were not properly before the Commission. Before the error was discovered, the
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members of the Commission reviewed the eighteen pages. Subsequently, Day learned
what happened, at which time he moved for dismissal of the charges, or in the
alternative, a "mistrial." He later filed a motion for recusal of the members of the
Commission. All relief was denied. Day maintains that the improperly disclosed
information created bias, and the remedy now is that the case should be dismissed, or
a new hearing granted before a new Civil Service Commission. In its opinion, the
Commission dealt with the issue as follows:
As indicated previously on the record, the members of this
Commission find that they are able to render an impartial and unbiased
decision in this appeal despite having reviewed the contested eighteen
pages. (N.T. 8/12/2003 at 718-721). One of the duties of any Civil
Service Commission is to rule on the admissibility of evidence. Under
Day's counsel's legal argument, any time a Civil Service Commission
considers and then rejects a document as inadmissible, that Commission
is irrevocably tainted and can no longer sit and continue to hear the case.
Common sense requires us to reject this argument. Moreover, counsel
for Day has identified no substantive basis related to the content of these
eighteen pages on why the Commission's review of the contested
documents would disqualify them from continuing to hear this case.
In addition, assuming arguendo that the members of the
Commission were prejudiced by the contested eighteen pages of
documents, the Commission concludes that the Rule of Necessity would
preclude the members of the Commission from recusing themselves. See
Stroudsburg Area Sch. Dist. v. Kelly, 701 A.2d 1000, 1003 (Pa. Cmwlth.
1997). The Rule of Necessity provides that "when all members of a
tribunal or so many that there is not a quorum are subject to recusal, the
tribunal must consider the case despite the personal interest or bias of its
members, because otherwise the agency could not carry out its duties
and the litigants would be denied a decision in the matter." Id.
Accordingly, even if the Commission were prejudiced or biased by the
contested pages, it would nonetheless render a decision on the matter,
and any perceived issue of prejudice must be disposed of on appeal.
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When information is improperly received by the tribunal adjudicating the
dismissal of a police officer, and that information prejudices the officer, the decision
cannot stand. City of Harrisburg v. Pickles, 89 Pa. Commw. 155 (1985). Seven of
the pages of the subject documents contain internal memoranda of the Carlisle Police
Department regarding its investigation of Detective Smith. Three pages contain
material involving the internal investigation of the Department regarding the deletion of
the name of Matthew Walters from a dispatch entry after a traffic stop by Patrolman
Brewbaker. Two pages, with six accompanying dispatch pages, involved an incident on
December 9, 2002, reported by Lieutenant Walters to Chief Margeson. Lieutenant
Walters set forth that Corporal Day investigated a complaint from a resident on West
South Street regarding vehicle tracks in her yard. Day reported that Sergeant Guido
had been a passenger in the vehicle when it went across the yard. Guido had been at
a party where Corporal Hograth provided tests on a portable breath detector to the
partygoers. Walters counseled Guido for using poor judgment during this incident, to
which Guido agreed. He counseled Hograth for using bad judgment, to which Hograth
agreed.
Generally, the information pertaining to the investigations of Detective Smith and
the deletion of the name of Matthew Walters from the dispatch entry was properly
admitted into evidence through other means at other times during the hearings before
the Civil Service Commission. The circumstances in which Day reported the conduct of
Sergeant Guido and Corporal Hograth to Lieutenant Walters regarding the incident on
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December 9, 2002, speak favorably of Day as Walters, his superior, concluded that
Guido and Hograth had used poor judgment in the matter. Accordingly, we conclude
that Day was not prejudiced by the Commission reviewing the eighteen pages
erroneously attached to Exhibit B-7. He, therefore, is not entitled to relief.
VI. THE BIAS ISSUE.
Day, maintaining that there was bias throughout the proceedings before the Civil
Service Commission, claims that he was denied procedural due process because the
Commission was not impartial. The Local Agency Law, 2 IPa.C.S. Section 753,
provides:
(a) General rule.-A party who proceeded before a local agency ...
shall not be precluded from questioning the ... resolution in the appeal,
but if a full and complete record of the proceedings before the agency was
made such party shall not raise upon appeal any other questions not
raised before the agency ... unless allowed by the court upon due cause
shown.
This court has previously denied Day's request to open the record for additional
evidence on the issue of bias. The claim is based on Day's, cumulative disagreement
with various rulings of the Civil Service Commission that are all reflected in the record
during the six hearings. Therefore, no due cause was shown to take additional
evidence. Now, any issue of bias is waived because no objection as to bias was put on
the record before the Commission. A party must raise before an administrative tribunal
all legal and factual issues necessary and appropriate for determination. Stoffer v.
Commonwealth of Pennsylvania, Pennsylvania State Police, 76 Pa. Commw. 397
(1983). That includes a claim of bias. Id.
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VII. THE UNION ACTIVITY ISSUE.
Day maintains that part of the reason for his dismissal was a violation of his right
of freedom of association to participate, on April 27, 2003, in constitutionally protected
union activity with the Carlisle Police Association. In order to raise such a claim, one of
the tests is to demonstrate that the activity is protected. Green v. Philadelphia
Housing Authority, 105 F.3d 882 (3d. Cir. 1997). The Civil Service Commission found
that on April 27, 2003, when Day (1) repeated to three subordinate police officers the
allegations he made in the communications room in the later part of January, 2003, and
(2) implied wrongdoing involving the deletion of the name of Matthew Walters from the
Metro files, the Carlisle Police Association meeting he had attended had ended. That
activity having ended, his statements to subordinate officers were not protected by a
right of free association with his union.
VIII. THE FREEDOM OF SPEECH ISSUE.
Day claims that his statements considered by the Civil Service Commission to
uphold his dismissal were within the ambit of protected free speech. A determination of
whether speech is protected in the employment context requires a balance between the
interest of the employee as a citizen in commenting on matters of public concern, and
the interest of the state as an employer in promoting the efficiency of the public services
it performs through its employees. Pickering v. Board of Education, 391 U.S. 563, 88
S.Ct. 1731, 20 L.Ed.2d 811 (1968). With the exception of prior restraints on speech,
the applicable standard for all other free speech issues in Pennsylvania is the federal
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04-1346 CIVIL TERM
standard. Preate v. Cancer Fund of America, 153 Pa. Commw. 124 (1993). Day's
claim of protected free speech is not raised in the context of his making statements to
anyone other than officers of the Carlisle Police Department. His claims are raised in
the context of his violating directives that he raise any concerns or alleged wrongdoing
within the Department up the chain of command, not with subordinates. As set forth in
Baldassare v. New Jersey, 250 F.3d 188 (3d Cir. 2001), a public employee's
retaliation claim for the exercise of a right of free speech requires a three step analysis.
First, the employee must establish that his speech was protected. This requires a
showing that the speech in question related to matters of public concern, and that the
employee's interest in expression outweighed the public employer's interest in
promoting the efficient and effective provision of its services. Second, the employee
must demonstrate that the protected activity was a substantial or motivating factor in the
alleged retaliation. Third, the employer may refute a retaliation claim by showing that it
would have taken the same action in absence of the protected speech.
A police department is a paramilitary organization. Day was a corporal in the
chain of command of the Carlisle Police Department. A governmental interest in the
regulation of employee speech may include whether that :speech impairs discipline by
supervisors or harmony among co-workers, has a detrimental impact on close working
relationships for which personal loyalty and confidence are necessary, or impedes the
performance of the speaker's duties or interferes with the regular operation of the
enterprise." Swartzwelder v. McNerlly, 297 F.3d 228 (3"s Cir. 2002). Courts have
-24-
04-1346 CIVIL TERM
given law enforcement agencies wide latitude to regulate an employee's speech when
that speech impacts an area such as discipline, morale, harmony, uniformity, and trust
in the ranks. Oladeinde v. City of Birmingham, 230 F.3d 1275 (11t" Cir. 2000). Day
was dismissed for making allegations to subordinate officers of wrongdoing by other
officers in the Carlisle Police Department. A chain of command policy regulates the
time, place and manner of the expression. See Bala v. Commonwealth of
Pennsylvania Unemployment Compensation Board of Review, 42 Pa. Commw. 487
(1979). By not raising complaints up the chain of command, which complaints were
determined to be baseless, Day exposed the police force to functional disruption and
weakening of morale. In this context, Day's interest in expression was outweighed by
the Department's interest in promoting efficient and effective provision of its services.
Accordingly, the speech for which Day was disciplined was not protected.
IX. THE SUBSTANTIVE DUE PROCESS ISSUE.
Day claims that he was denied substantive due process. If an interest is not
fundamental, the "government action is entirely outside the ambit of substantive due
process and will be upheld so long as the requirements of procedural due process have
been met. "Nicholas v. Pennsylvania State University, 2,27 F.3d 133 (3rd Cir. 2000).
The interest here is Day's employment as a police officer in the Borough of Carlisle.
Employment is not a protected interest. Bennison v. Pennsylvania Department of
Corrections, 268 F.Supp.2d 387 (M.D. Pa. 2003). Day has not been denied
substantive due process.
-25-
04-1346 CIVIL TERM
X. THE SUFFICIENCY OF EVIDENCE ISSUE.
In Amendola v. Civil Service Commission of Crafton Borough, 139 Pa.
Commw. 76 (1991), the Commonwealth Court of Pennsylvania, interpreted the term
"disobedience of orders" as used in Section 46190 of the Borough Code, in accordance
with common and approved usage. 1 Pa.C.S. § 1903(a). The Court used a dictionary
definition of "disobedience" as a "refusal to obey or neglect in obeying a command;
violation or disregard of a rule or prohibition." "Conduct unbecoming a police officer' as
used in Section 46190 has been defined as "[c]onduct that adversely affects the morale
and efficiency of the police force and tends to destroy public respect for, and
confidence in, the police force." Feliciano v. Borough of Norristown, 758 A.2d 295
(Pa. Commw. 2000). In the case sub judice, using these standards, the Civil Service
Commission weighed the credibility of all of the evidence and the testimony of
witnesses. Day, not unexpectedly, disagrees with many of the findings of the
Commission. These findings, however, are based on relevant evidence that a
reasonable mind might accept as adequate to support a conclusion.
The findings of the Civil Service Commission show that Day, for whatever
reasons, was not satisfied with decisions that had been made regarding several
incidents involving other members of the Department. That led to his making
allegations of wrongdoing to subordinate officers in the communications room that had
been determined in other investigations to be baseless. He also made an allegation of
a cover-up by the Borough police chief, when there had been none. Three days after
-26-
04-1346 CIVIL TERM
being told he would be disciplined for this conduct, he, nevertheless, repeated to
subordinate officers the baseless allegations he made in the communications room,
and additionally implied that a Lieutenant had wrongfully deleted his son's name from
the Metro system, another baseless allegation. The substantial evidence supports the
findings of the Civil Service Commission that Day failed to follow orders that any
concerns about other officers in the Department be made up the chain of command, not
to subordinates. The evidence also supports the finding of the Commission that Day's
actions constituted conduct unbecoming an officer.
Having concluded on a full and complete record made of the proceedings before
the Civil Service Commission that its adjudication, (1) did not violate Day's constitutional
rights, (2) is in accordance with the law, (3) did not violate any procedural provisions of
the Local Agency Law, and (4) is supported by substantial evidence, the following order
is entered.
ORDER OF COURT
AND NOW, this day of February, 2005, the appeal of Thomas L. Day
from an order of the Civil Service Commission of the Borough of Carlisle dated March
1, 2004, IS DISMISSED.
By the
Edgar B
-27-
04-1346 CIVIL TERM
Joseph D. Buckley, Esquire
For Thomas L. Day
Joseph C. Rudolf, Esquire
For the Civil Service Commission
Edward L. Schorpp, Esquire
For Borough of Carlisle
:sal
-28-
THOMAS L. DAY, JR.,
Petitioner
V.
CIVIL SERVICE COMMISSION OF :
THE BOROUGH OF CARLISLE,
Respondent
V.
BOROUGH OF CARLISLE,
Intervenor
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 04-1346 CIVIL TERM
MOTION TO RECONSIDER and MOTION TO SUPPLEMENT RECORD
And Now this 24s' day of February, 2005 comes, Petitioner, Thomas L. Day, Jr.,
by and through his attorney Joseph D. Buckley, Esquire, and moves that based on newly
discovered evidence, this Honorable Court reconsider its decision in this matter and in the
alternative open the record to permit the new evidence to be part of the record for the
purposes of any future appeal based on the following:
1. On May 9, 2003, Petitioner was terminated from his employment with the Carlisle
Borough Police Department by the Borough of Carlisle.
2. Petitioner filed a timely appeal of the matter to the Civil Service Commission of the
Borough of Carlisle.
3. After hearing and arguments the Civil Service Commission upheld the Borough's
decision to terminate Petitioner's employment.
4. Petitioner appealed this matter to this Court raising numerous issues and after
arguments this Court on February 11, 2005 dismissed Petitioner's appeal.
5. During depositions held this past week involving a federal lawsuit between Petitioner,
Intervenor and others, the following information was for the first time made available
to Petitioner:
a. In May, 2003 after Petitioner filed his appeal with the Civil Service Commission,
the Borough Manager and the Borough solicitor met to discuss who they desired
to become the solicitor for the Commission.
b. Neither the Borough manager nor the Borough solicitor had been requested to
make a determination as to who they desired to become the solicitor by any
member of the Civil Service Commission.
c. Joseph Rudolf had been the Borough of Carlisle's labor attorney for a number of
years in the late 1980s through sometime in the 1990s.
d. Joseph Rudolf had given the Borough legal advise on a number of labor and
employment related matters during his retention as outside labor counsel by the
Borough of Carlisle and had been paid by the Borough for his advice in labor and
employment matters and for representation of the Borough in court proceedings.
e. The Borough Manager contacted one of the Commission members and
recommended that he hire Joseph Rudolf to represent the Civil Service
Commission.
f The Civil Service member told the Borough manager to hire Joseph Rudolf as the
Commission's solicitor.
g. The solicitor for the commission is supposed to be an independent counsel to the
commission.
h. The Civil Service Commission held no meeting to determine the need for a
solicitor, held no vote on the selection of a solicitor nor did it inquire into any
other potential candidates for solicitor.
i. Subsequent to his conversation with one Commission member, and before
Petitioner's hearing before the Commission, Carlisle's Borough Manager began a
series of ex parte communications with Attorney Joseph Rudolf.
j. Following the first day of official hearings in this matter and after he became
upset with a newspaper article relating to the hearing which appeared in the
Carlisle Sentinel, Carlisle's Borough manager sent an ex parte memo to Joseph
Rudolf. (A true and correct copy of the memo and article are attached hereto and
collectively marked Exhibit "A").
k. The memo is a hand written note attached to a copy of a July 15, 2003 article
relating to Petitioner's appeal and states "Joe, at some point are you going to
make comment on this matter. We are very sensitive to the newspaper claims that
we do things behind close doors."
1. The memo was sent to and received by Joseph Rudolf at his Philadelphia law
office on July 16, 2003 by means of the Borough's facsimile machine.
m. Following the sending of this memo on July 16, 2003 and prior to the decision
rendered by the Civil Service Commission in February 2004, the Borough
Manager, with the knowledge of the Borough solicitor, had several ex parte
communications with Joseph Rudolf regarding Petitioner's appeal.
n. At no time prior to Tuesday February 22, 2005, during the aforementioned
depositions, was Petitioner or his counsel made aware by the Borough manager,
the borough solicitor, the members of the Carlisle Civil Service Commission or
Attorney Rudolf of the prior legal relationship of Joseph Rudolf and the Borough
of Carlisle.
o. At no time prior to Tuesday February 22, 2005, during the aforementioned
depositions, were Petitioner or his counsel made aware by the Borough manager,
the borough solicitor, the members of the Carlisle Civil Service Commission or
Attorney Rudolf of the written and verbal ex parte communications between
Carlisle's Borough manager and Joseph Rudolf
p. That when Petitioner raised his suspicions of ex parte communications between
the Borough and Joseph Rudolf, based on Petitioner's perceived bias of Attorney
Rudolf during the hearings with this Court in Petitioner's original notice of appeal
(See Petition for Review and Request for Hearing regarding Possible Improper
Conduct of Respondent Commission,a copy of the page containing Paragraph 12
is attached hereto and marked Exhibit "B"), both solicitors for the Intervenor and
the Respondent denied that there had been any such ex parte communications.
(See Respondent and Intervenor's Responses to Petition, Copy of Response of
Intervenor to Petitioner's paragraph 12 is attached hereto and marked Exhibit "C",
and Copy of Response of Respondent to Petitioner's paragraph 12 is attached
hereto and marked Exhibit "D").
q. Had Petitioner been given notice by either the Borough, its solicitor, the
Commission or Attorney Rudolf of the former relationship of Attorney Rudolf
and the Borough, Petitioner would have objected to his selection as an alleged
independent attorney.
r. Had Petitioner been given notice by either the Borough, its solicitor, the
Commission or Attorney Rudolf of the written and verbal ex parte
communications prior to and during Petitioner's hearing before the Civil Service
Commission between the borough's manager and Attorney Rudolf, Petitioner
would have objected to such conduct and requested the attorney be removed from
his position.
s. Respondent and Intervenor or their respective counsel intentionally withheld the
information regarding Attorney Rudolf's former employment and the ex parte
communications between the Carlisle's borough manager and Attorney Rudolf
from Petitioner and his counsel prior to, during, and following the hearing and
also misrepresented the existence of such communications to this Court.
6. Due process, of course, prohibits a person in a judicial capacity from hearing a case in
which his interest in the case presents any possible temptation to him not to hold a
totally impartial balance between the parties. In re Murchison, 349 U.S. 133 (1955);
State Dental Council and Examining Board v. Pollack, 457 Pa. 264, 318 A.2d 910
(1974). Furthermore, it is a well settled rule that a party need not show actual bias or
prejudice on the part of the adjudicatory body to prove a denial of due process.
Rather, as our Supreme Court has stated: "'... [A]ny tribunal permitted by law to try
cases and controversies must not only be unbiased but must avoid even the
appearance of bias."' Gardner v. Repasky, 434 Pa. 126, 129, 252 A.2d 704, 706
(1969). (See, Carr v. State Board of Pharmacy, 48 Pa. Commw. 330, 332; 409 A.2d
941, 943 (1980) )
7. Any administrative decision rendered following undisclosed ex parte communications
with only one of the parties involved in an administrative matter is suspect, must be
dismissed and the matter must be remanded for a hearing de novo. Mercy Hospital
Systems v. Department of Health, 165 Pa. Commw. 629; 645 A.2d 924 (1994).
WHEREFORE, Petitioner prays that this Honorable Court, in the interest of the
proper administration of justice, reconsider its former decision based on the newly
discovered evidence, reverse its former decision and sustain Petitioner's appeal, or
remand the matter to The Civil Service Commission for a de novo hearing. In the
alternative, Petitioner prays that this Court open the record in this matter to pen-nit
introduction of this evidence so that the matter may be reviewed by the Commonwealth
Court.
submitted,
J seph D. Bu, Esquir
ttorney for the Petitioner
Supreme Court ID #38444
1237 Holly Pike
Carlisle, PA 17013-4435
(717) 249-2448
JoeBLaw@aol.com
VERIFICATION
I, Thomas L. Day, Jr., Plaintiff' in the foregoing matter verify that I have read the
foregoing Motion and the statements made therein are true and correct to the best of my
knowledge and belief.
I understand that statements made herein are subject to the penalties of Title 18,
Section 4904 relating to unworn statements to authorities.
Date: February 24, 2005 /tea
THOMAS L. DAY, JR.
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B. Additional Testimony
12. Pursuant to the Court's jurisdiction under the Local Agency Law 2 Pa.C.S.
753 and 754, Petitioner requests that the Court take additional testimony in
this matter based on the following:
a. Petitioner believes and therefore avers that the attorney used by the
Respondent was selected not by Respondent but by the Borough of
Carlisle and /or its agents.
b. Petitioner believes and therefore avers that there were verbal and written
ex parte communications prior to and during the Civil Service hearing
between agents of the Borough of Carlisle and the attorney chosen by the
Borough to represent the Respondent, which was never disclosed to
Petitioner and that such evidence needs to be placed in the record of this
case without which Petitioner would be further prejudiced.
c. Certain evidence relating to the conduct of meetings and membership of
the Carlisle Police Association (the union) was not permitted to be
introduced by Petitioner and additional evidence has arisen since the last
hearing which is relevant to the Petitioner's case.
WHEREFORE, the Petitioner requests that the Court set a hearing date take additional
evidence relating to the hiring by the Borough of Carlisle of the attorney it assigned to the
Commission and possible ex parte communications between the said attorney and agents
C. Denied as conclusions of law to which no response is required. By way of
further response, the Petitioner did not raise this issue during the proceedings before the
Commission, and it is therefore waived for purposes of appeal before this Honorable Court.
d. Denied as conclusions of law to which no response is required. By way of
further response, the Petitioner did not raise this issue during the proceedings before the
Commission, and it is therefore waived for purposes of appeal before this Honorable Court.
e. Admitted in part, denied in part. It is admitted that Respondent refused to
permit Petitioner's counsel to make a closing argument. Respondent denies that such an exercise
of its discretion implicates, much less violates the Local Agency Law. By way of further
answer, all parties to the proceeding before the Commission were permitted to submit post-
hearing briefs, which the Commission considered prior to issuing its decision in this matter.
10. Denied as conclusions of law to which no response is required. To the extent a
response is deemed required, Respondent denies that its adjudication and findings of fact were
not supported by substantial evidence.
11. Denied as conclusions of law to which no response is required. To the extent a
response is deemed required, Respondent denies that its conclusions of law were not supported
by substantial evidence.
WHEREFORE, Respondent requests that this appeal be dismissed.
ADDITIONAL TESTIMONY
12. Denied. By way of further answer, the allegations raised in paragraph twelve (12)
and its sub-paragraphs were not preserved for appeal, as they were not raised before the
Commission below.
a. Denied as stated. As a matter of state law, under the Borough Code, the
selection of counsel for the Borough Civil Service Commission is made by Borough Council.
-6-
b. Denied as stated. By way of further answer, the issues raised in this sub-
paragraph were not preserved for appeal, as Petitioner did not raise these allegations before the
Commission.
C. Denied as stated. Respondent is without knowledge or information
sufficient to form a belief as to what "additional evidence" has arisen to which Petitioner is
referring in this sub-paragraph. By way of further answer, Respondent properly excluded
irrelevant evidence during the hearing on this matter. Also by way of further answer,
Respondent submits that Petitioner's vague statement that "additional evidence" has arisen is an
insufficient basis to order the taking of additional testimony. Finally, Petitioner has waived his
right to raise this issue on appeal by failing to identify such additional evidence in his Petition.
WHEREFORE, Respondent demands that Petitioner's request to take additional
testimony be denied and that the Court proceed to consider the matter on the full and complete
record established by the Commission.
NEW MATTER
Hearings under Borough Code and the Civil Service Regulations enacted by
Carlisle Borough are conducted in accordance with the Local Agency Law, 2 Pa. C.S. § 553 et
seq.
Section 753(a) of the Local Agency Law, 2 Pa. C.S. § 753(a), provides that a
party may not raise an issue on judicial appeal which was not raised before the local agency
below.
3. At no point during the hearing did Petitioner raise an objection that the
Commission and its agents acted in a manner more characteristic of a prosecutor than a neutral,
detached and impartial decision maker.
-7-
d. Denied. These averments are conc usions o aw to w is no answer i
required. Day has failed to preserve this issue by not raising it below. Further, it is
denied that any one acting on behalf of the Commission acted as a prosecutor. Day
was not properly represented by his counsel, notwithstanding the extreme leniency
afforded him throughout the hearing.
e. Admitted in part and denied in part. It is admitted that no oral argument was
afforded either side. It is denied that any violation of law occurred in this respect.
10. Denied. The averments of Paragraph 10 are conclusions of law requiring no answer
herein.
11. Denied. The averments of Paragraph I 1 are conclusions of law requiring no answer
herein.
WHEREFORE, Intervenor, the Borough of Carlisle, demands that this appeal be dismissed.
ADDITIONAL TESTIMONY
12. Denied. The averments with respect to the request to take additional testimony are
denied factually and are waived as a matter of law.
a. Denied. The attorney for the Commission was selected by the Commission.
Day has waived this issue by not raising it below, thus failing to preserve it on
appeal. Notwithstanding, under the law, the Borough Council, acting through the
Borough Manager, has the full authority to select and retain counsel for the
Commission.
b. Denied. There were no ex parte communications between any "agents" ofthe
Borough and counsel for the Commission. Notwithstanding, Petitioner failed to
assert this claim before the Commission and, under the applicable the law, the issue
is waived for all purposes.
C. Admitted in part and denied in part. It is admitted that certain incompetent
evidence was properly excluded by the Commission. It is denied that any probative
evidence bearing on the relevant issues has arisen since the close of Petitioner's case.
A bald, unspecific allegation that "additional evidence has arisen," without a
demonstrable showing that such evidence would have made a difference in the
outcome of the case is insufficient basis to order additional testimony. Day simply
seeks to go on a fishing expedition because he received an adverse decision below.
THOMAS L. DAY, JR., IN THE COURT OF COMMON PLEAS OF
Petitioner CUMBERLAND COUNTY, PENNSYLVANIA
V.
CIVIL SERVICE COMMISSION OF :
THE BOROUGH OF CARLISLE,
Respondent NO. 04-1346 CIVIL TERM
V.
BOROUGH OF CARLISLE,
Intervenor
CERTIFICATE OF SERVICE
I HEREBY CERTIFY THAT A TRUE AND CORRECT COPY OF PETITONER'S
MOTION FOR RECONSIDERATION AND MOTION TO SUPPLEMENT RECORD,
WAS DULY SERVED UPON THE FOLLOWING PERSONS OR ENTITIES IN THE
ABOVE CAPTIONED MATTER:
BY UNITED STATES FIRST-CLASS MAIL, POSTAGE PREPAID:
Edward L. Schorpp, esquire
10 E. High Street
Carlisle, PA 17013
Date: February 25, 2005
Joseph C. Rudolf, Esquire
Reed Smith, LLP
2500 One Liberty Place
1650 Market Street
Philadelphia, PA 19103
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F \FILES\DATAFILEI('.6i,leB., ulh3046\Do..m .,s\ 005\319... ionresp
Created: 313105 6:01AM
Revised: 3/3105 3:49PM
THOMAS L. DAY, JR.,
Petitioner
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
CIVIL SERVICE COMMISSION OF
THE BOROUGH OF CARLISLE,
Respondent
NO. 04-1346 CIVIL TERM
V.
BOROUGH OF CARLISLE,
Intervenor
RESPONSE OF THE BOROUGH OF CARLISLE TO
MOTION TO RECONSIDER AND MOTION TO SUPPLEMENT RECORD
AND NOW, comes the Borough of Carlisle (herein, Borough), Intervenor in the within
matter, by and through its Solicitor, Edward L. Schorpp, Esquire, and responds to the Rule to show
cause why the Motion to Reconsider and Motion to Supplement Record should not be granted as
follows:
1-2. Admitted.
3. Admitted in part and denied in part. It is admitted that the Civil Commission (herein,
Commission) upheld the dismissal after hearing. No argument was held before the Commission,
except for Petitioner's counsel's frequent argument with the Commission over its evidentiary rulings.
4. Admitted.
5. Admitted in part and denied in part. The Borough is without knowledge or
information sufficient to form a belief as to the truth of Petitioner's averments as to when any such
information first "became available" to Petitioner. This is the second attempt by Petitioner to inject
these allegations post-hearing into the proceedings (see Borough's Motion for Protective Order and
Order dated July 8, 2004, Hoffer, P.J., denying Petitioner's post-hearing discovery efforts).
Petitioner made no effort to inquire into the existence of any factual basis for his allegations during
the Commission proceedings, notwithstanding his caustic questioning, in verbal exchanges before
the Commission, of its counsel's role, and having the opportunity at that time to make proper inquiry
before the Commission. (see Hearing Tr., vol. 3, p. 635, In. 3, et seq.). Any claim or objection at
this late date is waived. Many of the subparagraphs in Petitioner's Paragraph No. 5 concern matters
which are privileged under the attorney-client relationship (herein, Privilege) and the Privilege is
asserted. Notwithstanding all of the foregoing, and without waiving the Privilege, the Borough avers
that there is no basis in fact or under the law for Petitioner's Motion(s). In its Opinion, this Court
has addressed and disposed of "The Solicitor Issue" (Opinion, at p. 19). Pursuant to the
Pennsylvania Borough Code, 53 P.S. § 46116, the legal matters ofthe Borough are under the control
of the Borough Solicitor. This is not a case of the Borough Solicitor violating due process by
contemporaneously prosecuting the case and advising the Commission, conduct which, had it
occurred, would have improperly commingled the adjudicatory and prosecutorial functions. The
Borough's conduct was no different than that of a judge giving due consideration to the selection of
counsel for an indigent criminal defendant. Query whether the judge is thereafter precluded from
presiding over the trial because of this involvement? The Borough responds to Petitioner's factual
averments as follows:
a. Admitted in part and denied in part. The Privilege is asserted.
Notwithstanding, and without providing the factual content of any discussions, the
Solicitor, within his legal purview, and the Borough Manager, within his purview as
chief administrative officer of the Borough, conferred post-appeal for the purpose of
considering the names of highly competent and ethical legal counsel to recommend
to the Commission to guide it through the proceedings.' The Borough Manager
thereafter provided the names of two attorneys, Keith Brenneman, Esquire, and
Joseph Rudolf, Esquire to Commissioner Francavilla. Commissioner Francavilla
requested the Borough Manager, in his administrative capacity, to retain Joseph
IThe Borough Manager has no authority over the Carlisle Police Department which, pursuant to the
Pennsylvania Borough Code, is under the day-to-day supervision of the Chief of Police and the Mayor. In this respect,
it is significant that the Chief and the Mayor were not consulted concerning the matter of counsel for the Commission,
especially the Chief, who was the moving principal in the dismissal proceedings and a fact witness.
2
Rudolf, Esquire, as Commission counsel for the proceedings. Petitioner's averment
that the Borough officials "met to discuss who they desired" implies an improper
motive, is scandalous and is without factual basis.'
b. Admitted in part and denied in part. It is admitted that no prior request was
made. It is denied (see subparagraph a above, which is incorporated herein) that the
manager and solicitor made the determination.'
C. Admitted in part and denied in part. Attorney Rudolf is highly respected
statewide for his knowledge of municipal labor matters and especially, police civil
service commission matters. The Borough has used his services in the past, primarily
through its membership in the Pennsylvania League of Cities and Municipalities,
under an arrangement whereby legal services were provided by him to member
municipalities. The Borough has had a number of "labor attorneys" and this
circumstance alone is not a disqualification from providing services as in the instant
matter.
d. Admitted. By way of further answer, the Borough paid him for his services.'
e. Admitted in part and denied in part. See subparagraph a above, which is
incorporated herein. The Borough Manager recommended both attorneys.
f. Admitted.
g. Admitted. The solicitor for the commission is required to render independent
2Should the Borough have had more time for the filing of this Response, it intended to notify Petitioner and
Petitioner's counsel of the Borough's intent to seek sanctions against both of them under Pa. R.C.P. No. 1023. 1, and
thereafter, to include the issue in its response to the Motions.
'This is true, notwithstanding that they did have the power to make a determination. It is common practice for
the Borough to appoint special solicitors on an ad hoc basis to advise its independent boards, i.e., Board of Appeals
(building construction matters) and the Commission. The practice is one of legal economy, as well as availability and
expertise of counsel with respect to particular subject matter. The zoning hearing board and independent borough
authorities do have retained counsel.
4Indeed, the Borough pays all expenses of the Commission, as it has no funds of its own
legal counsel to the Commission and Attorney Rudolf acted accordingly in this
matter. A review of the transcript of the proceedings verifies that his conduct was
proper, irrespective of the circumstances of his hiring.
h. Denied. The Commission member was provided two names and was not
prohibited from requesting and/or appointing other counsel. The Borough is without
knowledge or information sufficient to form a belief as to the truth of the remaining
averments of this paragraph. The remaining averments are irrelevant, in any event,
because the Commission utilized his services without objection of either member.
i. Admitted in part and denied in part. It is admitted that the Borough Manager
had communications with Attorney Rudolf subsequent to his selection as counsel for
the commission. It is denied that any of those communications were improper. The
memo marked Exhibit "A" to Petitioner's Motion(s) was sent to Attorney Rudolf.
It speaks for itself and did not concern the merits of the proceedings. When the
Borough Manager contacted Attorney Rudolf to obtain his services, the two
discussed an engagement letter and hourly rates, and in response to inquiry from
Attorney Rudolf concerning generally what the case was about, the Borough Manager
informed him of the name of the officer (to determine whether a conflict existed) and
the general nature of the charges. All remaining communications between the
Borough Manager and Attorney Rudolf were initiated by the Borough Manager for
the sole purpose of questioning the amount of legal fees being charged by his firm
to the Boroughs
j-m. Denied. The averments of subparagraph i are incorporated herein by
reference.
n. Admitted. By way of further answer, it is averred that neither did Petitioner
5Indeed, the borough manager insisted that Rudolf s fees be reduced. Were Attorney Rudolf not circumspect
and ethical, under Petitioner's reasoning, this action might have caused him to be biased against the Borough and in favor
of Day!
4
make inquiry into these matters. The rendering of prior legal services to the
Borough, in and of itself, is not a legal basis for disqualifying Attorney Rudolf from
the provision of services to the Borough, or any of its entities, in this or any future
matter.
o. Admitted in part and denied in part. It is admitted that the solicitor and the
Borough Manager did not so inform Petitioner. It is denied that either had a duty to
do so or that any impropriety occurred. After reasonable investigation, the Borough
is without information or belief sufficient to form an opinion as to the truth of the
remaining averments of this subparagraph and the same are therefore denied.
P. Denied. The documents speak for themselves. The Borough and the
Commission stated then, and the Borough reiterates now, that there were no ex parte
communications, a term generally understood by attorneys and the court to mean
improper communications concerning the merits of the case. According to
Petitioner's misguided logic, had the Borough inquired as to Attorney Rudolf's golf
game, it would have been under an obligation to report the communication to
Petitioner.
q-r. Denied. After reasonable investigation, the Borough is without information
or belief sufficient to form an opinion as to the truth of the remaining averments of
these subparagraphs and the same are therefore denied. The Borough cannot guess
what Petitioner would do.
S. Denied. The averments of subparagraphs a-r, inclusive, of this Paragraph No.
5 are incorporated herein by reference.
6-7. Denied. The averments of Paragraphs Nos. 6 and 7 are conclusions of law requiring
no answer herein.
By way of further answer, the Borough provides further response as follows:
8. At no time during the proceedings before the Commission did Petitioner inquire as to
the manner of selection of counsel and any objection thereto is waived.
5
9. Attorney Rudolf had no vote in the proceedings and any communication with him was
not an ex parte communication to the tribunal.
10. Petitioner bears the burden to show improper communications occurred ex parte.
Notwithstanding that he conducted depositions from which he claims to have learned of these matters
(see Motion Paragraph 5), he has not averred any facts which demonstrate that improprieties occurred
during any communication between the Borough Manager and Attorney Rudolf. Petitioner has
simply averred general allegations of communications between the two without specifying the
substance of any matter which would cause any of the communications to have been improper. He
has not averred sufficient facts to carry his burden.
10. No ex parte communications occurred which would serve to taint these proceedings
or otherwise give rise to a reopening of the record.
WHEREFORE, Intervenor, the Borough of Carlisle, request that the Motion(s) be dismissed.
MARTSON DEARDORFF WILLIAMS & OTTO
BY
Edward L. Schorpp, Esquire
Solicitor for the Borough of Carlisle
Ten East High Street
Carlisle, PA 17013
(717) 243-3341
Date: March 3, 2005
6
VERIFICATION
I verify that the statements contained herein are true and correct. I understand that false
statements herein are made subject to the penalties of 18 Pa.C.S.A. §4904, relating to unswom
falsification to authorities.
CIS,
Fredrick M. Bean Borough Manager
3 zoo s
Dated: -/I
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Response of the Borough of Carlisle to
Motion to Reconsider and Motion to Supplement Record was served this date by depositing same in
the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows:
Joseph D. Buckley, Esquire
1237 Holly Pike
Carlisle, PA 17013
Joseph C. Rudolf, Esquire
2500 One Liberty Place
1650 Market Street
Philadelphia, PA 14103-7301
MARTSON DEARDORFF WILLIAMS & OTTO
Edward L. Schorpp, squire
Ten East High Street
Carlisle, PA 17013
(717) 243-3341
Dated: ?lC ?/ 3 ';a0a5-
c, ? a
m
THOMAS L. DAY, JR., : IN THE COURT OF COMMON PLEAS OF.
Petitioner : CUMBERLAND COUNTY, PENNSYLVANIA
V.
CIVIL SERVICE COMMISSION OF :
THE BOROUGH OF CARLISLE,
Respondent : NO. 04-1346 CIVIL TERM
V.
BOROUGH OF CARLISLE,
Intervenor
RULE TO SHOW CAUSE
AND NOW this ?.51-day of V?& Z, 1 2005 a Rule is hereby issued upon
the Respondent and the Intervenor to show cause why the Petitioner's Motion for
Reconsideration and Motion to Supplement Record should not be granted. Rule
returnable within five (5) days of this Order.
05
BY THE COURT /
V?
Judge
.i l`? _.
?'
THOMAS L. DAY, JR., IN THE COURT OF COMMON PLEAS OF
Petitioner CUMBERLAND COUNTY, PENNSYLVANIA
V.
CIVIL SERVICE COMMISSION OF :
THE BOROUGH OF CARLISLE,
Respondent NO. 04-1346 CIVIL TERM
V.
BOROUGH OF CARLISLE,
Intervenor
MOTION TO OPEN RECORD, MOTION FOR A NEW HEARING TO
INTRODUCE NEW EVIDENCE, AMENDED MOTION TO RECONSIDER AND
MOTION TO SUPPLEMENT RECORD
AND NOW this I I[h day of March, 2005, comes Petitioner, by and through his
counsel, Joseph D. Buckley, Esquire, and requests that this Court open the record in this
case and hold a hearing for the introduction of newly discovered evidence, to supplement
the record in this case and thereafter to reconsider its former decision based on the new
evidence and then reverse its former decision using its legal and equitable powers as
herein stated based on the following:
A Grounds to Reopen Record and Hold New Hearing Based on Discovery of New
Evidence - No Full and Complete Record Below
1. Preliminary matters in this case had been reviewed and ruled upon by Judge
George Hoffer; the appeal and argument in this matter was before Judge
Edgar Bayley and Judge Kevin Hess; after brief and argument Judge Edgar
Bayley issued an Order and Opinion on the said appeal; Judge Edgar Bayley
issued an Order on a recent Motion to Reconsider and to Supplement the
Record.
2. This Court has the authority to reconsider its former decision and to open the
record based on 2 Pa. C.S § 754(a) which provides: "Disposition of appeal
(a) INCOMPLETE RECORD. --In the event a fill and complete record of the
proceedings before the local agency was not made, the court may hear the
appeal de novo, or may remand the proceedings to the agency for the purpose
of making a full and complete record or for further disposition in accordance
with the order of the court." And 42 Pa. C.S. § 706 relating to appeals and 42
Pa.C.S. § 5505 relating to Modification of orders.
3. The attorneys involved in this case are Joseph. D. Buckley for Petitioner,
Edward Schorpp for the Intervenor and Joseph Rudolf for the Respondent.
4. On May 8, 2003, upon the recommendation of the Chief of Police and the
Mayor, Carlisle's Borough Council voted to remove Thomas L. Day, Jr.
("Day") as a borough police officer.
5. On May 9, 2003, Day filed an appeal of the Borough's decision to remove
him with the Civil Service Commission of the Borough of Carlisle
("Commission").
6. Sometime later, in May of 2003, Fred Bean ("Bean"), the Borough's manager,
and Ed Schorpp ("Schorpp"), the Borough's solicitor, met and discussed who
they believed should be selected as solicitor for the Commission and who
would act as a quasi-judicial officer at the hearing.
7. The Commission was then composed of three appointed members Mr.
Francavilla, Mrs. Hollis and Attorney Duncan.
2
8. Without a request from the Commission or the Borough Council, Bean and
Schorpp discussed two attorneys they believed should be selected as legal
counsel to advise the Commission and to act as a quasi-judicial officer in the
hearing between the Borough and Day.
9. One of the attorneys they desired to advise the Commission, Joseph Rudolf,
("Rudolf') had formerly been employed by the Borough of Carlisle as the
Borough's outside counsel.
10. Attorney Rudolf had, in the past, advised the Borough on employment and
labor matters and had represented the Borough of Carlisle in Court
proceedings.
11. Thereafter, Bean had an ex parte communication with the Commission
through Commission member Francavilla. Bean recommended that the
Commission select and hire Attorney Rudolf to advise the Commission on
Day's Appeal.
12. Francavilla, so sponte and without advise and consent of other Board
members, in an ex parte communication advised Bean to contact Attorney
Rudolf and to select and hire Rudolf to advise the Commission and to act as
the hearings quasi-judicial officer.
13. Neither the Commission nor the Borough Council had requested Bean or
Schorpp to compile a list of names of potential solicitors for the Commission.
14. No private or public selection process for a solicitor was requested.
15. Attorney Rudolf was not randomly selected.
3
16. Bean had an ex parte communication with Attorney Rudolf, in which they
generally discussed the Borough's case against Day.
17. Sometime thereafter Attorney Rudolf was sent the official record of Day's
appeal.
18. Prior to the first hearing date, counsel for the Borough and Day presented
letter briefs to Attorney Rudolf relating to Day's request for an open hearing.
19. On July 14, 2003, at the first scheduled hearing date, the Commission closed
the hearing to the public over the objection of Day (Notes of Testimony Page
8) and even excluded Day's wife from the hearing (Notes of Testimony Page
11).
20. On July 15, 2003, a newspaper article appeared in the Carlisle Sentinel related
to the Commission's decision to close the hearing.
21. The article included a statement that Attorney Rudolf would not comment on
the Commission's decision.
22. Thereafter, Bean had an ex parte communication with Attorney Rudolf in the
form of a written a memo attached to the newspaper article.
23. Bean made notations on the said article.
24. Bean circled "After the proceedings concluded, Rudolf declined to
comment." Bean also underscored "Day's attorney, Joseph Buckley, argued
the state's Sunshine Act requires the meeting to be open if the party filing the
appeal requests it be open to the public."
4
25. Bean's written memo stated "Joe, at some point are you going to make
comment on this matter. We are very sensitive to the newspaper claims that
we do things behind closed doors [signed] Fred."
26. Bean faxed his memo and article to Attorney Rudolf at Rudolf s Philadelphia
law office.
27. Attorney Rudolf received the memo and article from Bean
28. During the course of the hearings and prior to the Commission issuing a ruling
in this matter, Bean and Rudolf, with the knowledge of the Borough's
solicitor, had ex parte discussions relating to bills for professional services
rendered by Rudolf and other members of his firm in the matter of Day's
Appeal.
29. During the several days of hearings Rudolf made rulings on evidence and
motions, and questioned and cross-examined witnesses.
30. Based on Attorney Rudolfs constant interruptions of Day's counsel during
his cross examinations and direct examination, and Attorney Rudolfs
objecting to Day'scounsel's questions even when no objection had been raised
by the Borough's attorney, Day's counsel repeatedly questioned Rudolfs role
at the hearing and also objected to his acting like a prosecutor. Some, but not
all examples from the hearings official transcript before the Commission
were:
a. FIRST OBJECTION
Notes of Transcript Page 91 after being interrupted by Attorney
Rudolf during cross examination without an objection from Attorney
Schorpp,
5
Buckley states at Lines 6-10 "And I don't mean to be - I will - I
would like to be able to direct questions as to those that I believe are
important. If counsel (Rudolf] - you know, if you believe there are
questions."(emphasis added)
Rudolf then stops Buckley's cross-examination and says at Line 11
"Why don't I pose a question" (and begins questioning the witness
himselEl
b. SECOND OBJECTION
Page 161 Buckley is crossing a witness and Rudolf interrupts at
Line 2 "I think we talked about a stop sign, a warning for a stop sign"
Buckley at Lines 4-5 "Would you like; to create the questions?
I'm sorry." (emphasis added)
Rudolf Lines 6-9. "Well there is going to be an objection as to
relevance... and that's going to be sustained, so why are we wasting
time?" (even though no objection had been made).
c. THIRD OBJECTION
Page 278-79 Lines 18-21 Buckley is conducting a cross
examination of the Chief of Police and asks a question.
Rudolf at Line 22 with no objection frotm the borough's counsel
"Mr. Buckley, regardless of the Chief's answer, ... "
Buckley at Page 179 at Lines 4-5 "Are you obiectine - I'm sorry.
Are you making an obiection on the record?" (emphasis added)
d. FORTH OBJECTION
Page 288 Lines 11-14, Buckley is posing a question during cross
examination of the Chief of Police regarding written police policies
relating to the handling of alleged police misconduct. Without any
objection from the Borough counsel,
Rudolf at Lines 15-21 "Can I - I hate to jump in with an objection.
But as I read the policy, it has to do with misconduct of an officer under
the supervisor's command. I don't know how any of these questions are
going to be relevant. I don't know that there's arty testimony that under
your scenario that either the lieutenant or detective were under Sergeant
Guido's command."
Buckley at Lines 22-24. "I'm at a loss here for your obiection
because this is cross-examination. Number Two - -" (emphasis added)
Rudolf: "It needs to be relevant. Its (continuing on Page 2891 going
to be a waste of time. The policy applies to certain situations. There's no
foundation for that. I want to move this thing along, Mr. Buckley, and
we're, like chasing our tails here."
Buckley: "This is a matter of great importance to my client. My
client is allowed to have ample opportunity to cross-examine. One of the
things he is accused of doing is not following procedures, not following
policy. I want to find out- I want the Commission - I think the
Commission would like to know what the policies are, what everyone's
role is within that policy, so they can determine whether or not the policy
was, in fact followed..."
Rudolf : "And I don't know how this Subsection D is relevant to
the case before the Commission (continues into Page 290]
Buckley Line 20 "Well, you're - on the record, I - generally when
I do a cross-examination, I don't generally have obiections raised by
someone who is not opposine counsel. If the opposing counsel does not
feel it's not relevant. I have a loss here. I am at a loss. And sir, in due
respect Mr. Rudolf. I haven't (into Page 291, Lines 1-41 been
subjected to this before in any hearing whatsoever where counsel for a
Commission stops me in the middle of my cross-examination and
starts asking questions, and you've done that repeatedly. (emphasis
added)
Rudolf: "I'm trying to move this along., and I've been in a bunch of
hearings where it's happened to me where I've been the advocate where
I'm told to move it along (there is additional discussion between Rudolf
and Buckley through Page 292, the Commission has a discussion with
Rudolf off the record]
Schorpp then states at Lines 22-25 : "I simply wanted to state that
the Borough did have several objections on the record concerning the
relevancy of this line of question, therefore, the Borough does not perceive
the leniency on f continues into Page 2931 the part of the Commission and
its Solicitor in allowing testimony to go to this extent and then having the
Solicitor get back to the essential question of relevancy, the Borough
does not perceive that to be taking it by itself the role of an advocate
in this matter. Thank you." (emphasis added)
e. FIFTH OBJECTION
Pages 385 and 386 the parties argue about the relevancy of a
proposed provision in the upcoming union contract. Buckley argues it is
relevant because the statements attributed to Day at or following the union
meeting were made in the context of discussing the need for the proposed
change
Rudolf at Page 386 Line 20 "Why is that relevant?"
Buckley: Lines 21-24 "Because he was charged with making
statements about something that was factual, that someone had deleted
something from files, and he's been charged with saying that at a union
meeting."
Schorpp at Line 25 "No, he's not."
Rudolf [Page 387 Linesl-31 "no he's not. It was after the meeting
was over, he was told to turn out the lights and lock up."
Buckley: "That's the evidence you've heard. If you have already
made a determination as to the facts, please tell us." (emphasis added)
Rudolf:" No I'm just saying --.11
Buckley "No please tell us if you have made a determination of
the facts." (emphasis added)'
f. SIXTH OBJECTION
At Pages 565-566 Rudolf over Buckle;y's objection permits
Schorpp in the middle of Buckley's cross to read the direct testimony of a
former witness into the record.
Buckley then states at Page 566 Line 14 "May I address what Mr.
Schorpp just placed into the record?"
Rudolf "I think it doesn't need to be addressed at this time. You
can argue it later the record, it says what it says. We don't need you guys
reading from --."
Buckley: "But you needed him ISchorppl to read it. Is that the
case, sir? I'm sorry. I'm at a loss here. I'm at a loss." (emphasis added)
Rudolf: "If you could continue with your questioning."
Buckley "So you will not allow me to show [Page 567 Line I] you
in the record where it says contrary to what he says?"
Rudolf: "In your post hearing brief you can reference it."
Buckley: "But the Borough may do that? Thank you, sir."
(emphasis added)
g. SEVENTH OBJECTION
Pages 632-635 Buckley is questioning his witness Schorpp objects
and Rudolf begins questioning Buckley
Buckley [634 at Line 161 "May I please finish when I go through
an address so I can keep my train of thought? Is that possible?"
Rudolf: "You're muddling the record, sir."
Buckley: "I know someone is muddling the record; it's very
true. I understand that. (emphasis added) All I ask is that you allow me,
without interruption to continue my thoughts."
Rudolf: "As long as your statements are accurate"
8
Buckley at 635 Lines 3-8 "I'm not under investigation here, sir.
Okay? I am not under investigation from you. All I am here to do is to try
to explain to the Commission. I must misunderstand your role, and I
solicitor." (emphasis
h. EIGHTH OBJECTION
Pages 717-732 The Commission realizes Schorpp had given the
Commission 18 pages of documents which were not part of the record.
Buckley objects and requests the matter be dismissed and new
Commission named. Rudolf questions the Commissioners. Buckley
requests that he be permitted to question the Commissioners. His request
is denied;
Page 732 at Line 15 Buckley:" So you are not going to give me the
ability to question the Commissioner? Is that your statement, sir?"
Rudolf: "Unless you have other topics to be covered other than
what you've already identified which I believe I've adequately covered
with the commissioners. I don't see any more questions to ask."
Buckley: "You don't see any other questions to ask? Now again,
sir I'm trying to £gure out your role here. What is your role in that,
in this?" (emphasis added)
Rudolf: "I'm not going to address - I'm counsel to the
Commission; that's my role."
i. NINTH OBJECTION
Page 762 Line 14 Rudolf: I'm going to ask you some yes or no
questions to try to get this along. Okay?"
Buckley "Well, sir, again in due deference to you, sir, I do not
have to - unless directed by someone else, I don't have to -- I'm not
here to be interrogated by you. I'm here as the representative of my
client. Okay? I saw your letter. Again for the record, as I said, I was
shocked to receive a letter on an issue that was not presented by us, so
I didn't know what issue you were bringing forward. Again I would
just like you to rule on the motion. I'd like the Chairman to [continued to
Page 763] rule on the motion." (emphasis added)
Rudolf: "Can I build a record on this matter since this is going
up on appeal?
Francavilla: "Yes."
Hollis: "Yes."
Rudolf: "Mr. Buckley -"
Buckley: "And again, I would like that--you said it's going up on
appeal. That presupposes that you have already made a decision, sir.
amazes me. [Tom Day had not even testified at this point] (emphasis
added)
j. TENTH OBJECTION
Page 1001 and 1002 Rudolf begins objecting with no objection
posed by the Borough's counsel to Buckley's questions.
Line 4 Buckley: "Again, for the record, I would iust like it
noted that- (emphasis added)
Rudolf "All this stuff is on the record, Mr. Buckley. Have a seat."
Buckley: "you're obiectina to my witness ITom Dayl making
statements?"
Rudolf: "I'm asking him to answer the question.
Buckley: "Again sir, iust for the record, I, again, don't know
your position here, what you are trying to do?" (emphasis added)
Rudolf: "my position here is to move this thing along. Please sit
down Mr. Buckley."
k. ELEVENTH OBJECTION
Pages 1085-1090 During Schorpp's cross of Day, Buckley objects
[Page 1085 line 24] and Rudolf stops Schorpp and Rudolf begins an
extensive cross examination of Day.
Buckley [Page 1090 Line 16 to Rudolf: "Again I have to obiect,
you are putting words into his mouth." (emphasis added)
Rudolf' l am trying to clarify the record, Mr. Buckley. Your
objection is noted. You need to have a seat."
1. TWELFTH OBJECTION
Pages 1174-1176 Rudolf is questioning Day about legal advice he
may have received from the labor counsel hired by the union concerning
whether Day could file a grievance which was the subject of a Mandamus
action filed with the Court of Common Pleas to force the Borough to
participate in arbitration of the issue.
Page 1] 76 Line 5 Rudolf: "Is there any reason to believe that Mr.
Lightman gave you bad advice, that he was wrong about that?"
Buckley:" Again I have to obiect to this. I have to put this on
the record. Again - (emphasis added)
Rudolf: "It's noted for the record."
Buckley at Lines 10-16 " Mr. Rudolf, I believe that you are
going far talfield of being counsel to the Commission and starting to
10
ask questions about legal procedures that he is utilizing in the Court
of Common Pleas which has nothing to do with what is going on here.
Again I question where you're going with this and why you're acting
like a prosecutor." (emphasis added)
31. At no time before February 22, 2005, did Bean, Schorpp, the Borough, the
Commission or Rudolf inform Day or his counsel of Rudolf s former
employment as the outside labor attorney for the Borough of Carlisle.
32. At no time before February 22, 2005, did the Commission, Schorpp, Bean or
Rudolf inform Day or his counsel that prior to the hearing in the Day appeal
Bean had an ex parte communications with Commissioner Francavilla.
33. At no time before February 22, 2005, did the Commission, Schorpp, Bean or
Rudolf inform Day or his counsel that prior to the hearing in the Day appeal
Commissioner Francavilla had an ex parte communications with Bean.
34. At no time before February 22, 2005, did the Commission, Schorpp, Bean or
Rudolf inform Day or his counsel that prior to the hearing in the Day appeal
Bean had ex parte communications with Attorney Rudolf.
35. At no time before February 22, 2005, did the Commission, Schorpp, Bean or
Rudolf inform Day or his counsel that after the first day of hearings Bean had
a written ex parte communication with Rudolf.
36. At no time before February 22, 2005, did the Commission, Schorpp, Bean or
Rudolf inform Day or his counsel that after the first day of hearings but before
the Commission entered its decision in this matter Bean had a number of ex
parte communications with Rudolf.
11
37. The Borough's Civil Service Commission is an independent body, intended to
serve as an appellate tribunal with authority to resolve police disciplinary
disputes. See, the Borough Code (53 P.S. § 46172).
38. The Commission conducts public hearings and is required to issue written
decisions on the cases it decides. See, the Borough Code (53 P.S. § 46191).
39. The Commission may issue subpoenas. See, the Borough Code (53 P.S. §
46179).
40. The Commission has the power to prescribe, amend and enforce rules and
regulations. See, the Borough Code (53 P.S. § 46176).
41. The Commission is, therefore, clearly a quasi-judicial tribunal and is to
function in the role of a neutral arbitrator of employment disputes between the
Borough and its police officers. See, Pinkney v. Civil Service Commission,
688 A.2d 1252 (Pa. Commw. 1997).
42. The rules and regulations of the Commission specifically provide in section
908 entitled "Counsel": "Borough Council and the person sought to be
suspended, removed, or demoted shall at all times have the right to employ
counsel before the Commission. The Commission may employ legal counsel
to advise it on matters arising during hearings." (emphasis added)
43. The Borough Solicitor is in charge of the legal affairs of the Borough (53 P.S.
§ 46116), but not the affairs of the Civil Service Commission. (See Rule 908
of the Civil Service Commission of the Borough of Carlisle)
44. No department or officer of the borough shall employ additional counsel
without the assent or ratification of council.
12
45. Nowhere in the Borough Code is the Solicitor or the Borough Manager
authorized to select and hire attorneys for the Borough's independent boards
or commissions. See the Borough Code 53 P.S. § 46141-46147.
46. It has been well established that a "fair trial in a fair tribunal is a basic
requirement of due process." IFiihrosv v. Larkin, 421 l .S. 35. 46, 9; S.O.
1456. 1464. 43 1.Ed.2d 712 (1975); In re Vurchison. 349 1!.S. 133, 1 0, 75
S.O. 623. 625, 99 E.Ed. 942 (1955); Bride.111:Jppeal. 32 Pa.Conlnlol wealth
0. 541, 546.380 A 2(i 497. 500 (1977).
47. The principal stated in paragraph 33 above applies equally to administrative
agencies. Withrow v. Larkin; Gibson v. Bern,-hill. 411 t i.S. 564, 579. 93 S.Ct.
1689, 1698, 36 1JA.2d 488 (1973);also see, Schlemns;er 1ppeol, 404 11a. 584,
172 A.2d 835 (1961).
48. Administrative tribunals must be unbiased and must avoid even the
appearance of bias to be in accordance with principles of due process. Daymil)
v. State Dental Council and L:xaminin° Bourn, 70 Pa.Coinmouwcalth C(. 631,
625, 453 A2d 751, 753 (1982): See also Gardner c. Repusks:, 4;4 Pa. 126,
129, 252 A.2d 704, 706 (1969)_ FR R S, Inc. v. Deportuiunt of Ell l ironwental
Resources, 113 P i.Commonwealth Ct. 576, 537 A.2d 957 (1988). affd per
curiam, 522 Pa. 114. 560 A 2d 128 (1989).
49. °`A governmental body charged with certain decision-making functions that
must avoid the appearance of possible prejudice, be it from its members or
from those who advise it or represent parties before it." Horn v. Township o/
Hilltom n, 461 Pa. 745. 748, 337 A.2d 858. 860 (1975). See also Shah v. State
13
Board of Medicine, 139 Pa. Commw. 94; 589 A.2d 783 ( 1991), Ruche v.
Stale BoardofFunerulOireciurs,6' Pa.Commotmealth Ct. 128. 137.437
A.2d 797, 802 (1981).
50. Due process prohibits a person in a judicial or quasi-judicial capacity from
hearing a case in which his interest in the case presents any possible
temptation to him not to hold a totally impartial balance between the parties.
In iv ;Vurehison, 349 U.S. 113 (1955); .Stare Derual Council and Exurnining=
Board v. Pollack, 457 Pa. 264, 318 A.2d 910 0 974).
51. A party need not show actual bias or prejudice on the part of the adjudicatory
body to prove a denial of due process. Rather, as our Supreme Court has
stated: "'... [A]ny tribunal permitted by law to try cases and controversies
must not only be unbiased but must avoid even the appearance of bias."'
Gardner v. Repasky, 414 Pa. 126. 129, 252 A .2d 704. 706 (1969). See Carr v.
Cam., State Board of Pharmacy, 48 Pa. Commw. -330,409 A.2d 941 (1980).
52. Judge shopping has been universally condemned, and will not be tolerated at
any stage of the proceedings. See, e.g., Municpal Publications, Inc. v. Court of
Common Pleas, 507 Pa. 194; 489 A.2d 1286, 1290 (1985), Commonwealth r.
R,can, 484 Pa. 602, 400 A.2d 1264 (1979): Cominomwallh r. Prado. 481 Pa.
=485,,393 A .2d 8 (1978): Cornmomwellth v. Schuh, =477 Pa. 55, 181 A?d 819
(1978): Craig)-. W-J.. 77tiele & Sons, Inc., 395 Pa. 129. 149 A .2d 35 (1959);
Linn v. lsmhkwer.c Reinsurance Corp., 392 Pa. 58, 1 39 A .2d 638 (1958).
53. A judge should disqualify himself when he has served as counsel for one of
the parties in an action before him. See, Kolb'e Case. 4 Watts 154 (1835).
14
54. When a contract calls for "disinterested" arbitrators, prior representation of
one of the parties by a designated arbitrator will disqualify that arbitrator upon
objection of the opposing party." Bole v. Nationwide Insurance Company, 475
Pa. 187; 379 A.2d 1346 (1977).
55. The final decision-makers on the law and the facts of a case, whose decision is
final stand as judges and their conduct must be robed in judicial impartiality."
Bole v. Nationwide Insurance Company, 475 Pa. 187, 191, 379 A.2d 1346,
148 (1977).
56. A judge formerly employed by a government agency should disqualify
himself in a proceeding if his impartiality might reasonably be questioned
because of his association." Pennsylvania Code of Judicial Conduct Canon 3,
first note.
57. The standard for determining whether a judge should be disqualified is
whether a "'reasonable [person] knowing all the circumstances would harbor
doubts concerning the judge's impartiality." I inited States N. Vespe. 868 F .2d
1128, 1141 (3d Or. 1989).
58. The due process requirement of an impartial decision maker is applied more
strictly in administrative proceedings than in court proceedings because of the
absence of procedural safeguards normally available in judicial proceedings.
Ventura v. Shalala, 55 F.3d 900 (3rd Cir. 1995)
59. The common and approved usage of "ex parte" is communications between
the decision-maker and one party outside of the record and where the other
party does not have notice or the opportunity to contest." Mercy Regional
15
Health System v. Department of Health, 165 Pa. Commw. 629; 645 A.2d 924
(1994).
60. An ex parte communication occurs when information is exchanged between a
judge and one of the parties to a pending proceeding without notice to an
adverse party. Black's Law Dictionary 517 (5th end. 1979)." Borough of
Kennett Square v. Lal, 164 Pa. Commw. 654; 643 A.2d 1172 at 1174 (1994),
61. Any case where ex parse contacts are made, orally or in writing, in regard to
the issues under dispute, without notifying all other parties to the dispute, will
raise a strong presumption that the ultimate award made was procured by
corruption, fraud or other undue means . Wojdak v. Great Phila. Cablevision,
550 Pa. 474, 491, 707 A.2d 214, 222 (1998).
62. Judges are prohibited from considering ex parte communications and
requiring a judge's recusal in any case where the judge has knowledge of
disputed facts from a source other than the evidentiary record. Canons 10)(4)
and 3(C)(1)(a) ofthe Code of Judicial Conduct.
63. An ex parte communication made with no improper motive is wrong because
the conduct by itself raises an appearance of impropriety, which could
undermine public confidence in our judiciary. 11uuer of Larsen, 512 Pa. ;26.
;86, 3)91 616 A.2d 529, 559. 562 (1992).
64. Ex parte communications are so disfavored by the court because it is
impossible to determine what was said or what influence the communication
has on the decision maker.
16
65. "An administrative tribunal has the power to ask questions to clarify matters
and to elicit relevant information not presented by counsel. Dayoub v. State
Dental Council and Examining Board.
66. The Commission and its attorney, Rudolf, overstepped its bounds not when it
permitted Rudolf to heatedly question and argue with the Day, Day's
witnesses and Day's counsel "in such a manner that the Commission's
attorney's was much more in line with that of a prosecuting attorney than of a
neutrally detached and impartial decision-maker.
67. Day's counsel placed numerous specific objections on the record to give
notice to the Commission that Day objected to the role assumed by the
Commission's attorney as an advocate of the Borough's position, as detailed
in paragraph 17 above.
68. The Commission's attorney because of his bias based on the numerous ex
parte communications with the Borough and its agents and his former
professional relationship with the Borough, constantly made negative
comments and disallowed Day to develop numerous relevant fields of
evidence during Day's case, including:
a. The relationship of the proposed changes to the union contract as it
related to the context in which Day's statements were made to fellow
union members,
b. The application of the Police Department's written policies and
procedures relating to the handling of allegations of misconduct on the
part of police personnel,
17
c. A complaint received by Day from a citizen regarding serious police
misconduct.
69. The Commission's attorney because of his bias based on the numerous ex
parte communications with the Borough and its agents, and his former
professional relationship with the Borough constantly interrupted Day's
counsel during his examination of witnesses even when the Borough's counsel
had raised no objection.
70. The Commission's attorney because of his bias based on the numerous ex
parte communications with the Borough and its agents and his former
professional relationship with the Borough permitted the Borough to interrupt
Day's case, during Day's counsel's direct examination of witnesses and read
former testimony given by a Borough witness into the record.
71. The Commission's attorney because of his bias based on the numerous ex
parte communications with the Borough and its agents and his former
professional relationship with the Borough, permitted Borough witnesses to
disregard the direct questions of Day's counsel posed during cross
examination and permitted them not to answer Day's counsel's questions and
to answer in a nonresponsive manner.
72. The Commission's attorney because of his bias based on the numerous ex
parte communications with the Borough and its agents and his former
professional relationship with the Borough, would riot permit Day to call
Police management personnel and police officers who had been given written
18
and verbal orders by the Chief of Police not to speak to or discuss the case
with Day's counsel as witnesses to be "as on cross."
73. The Commission's attorney because of his bias based on the numerous ex
parte communications with the Borough and its agents and his former
professional relationship with the Borough, denied Day and his witnesses the
opportunity to fully explain answers, cutting their statements short.
74. The Commission's attorney because of his bias based on the numerous ex
parte communications with the Borough and its agents and his former
professional relationship with the Borough, permitted Borough to introduce
evidence relating to a Mandamus action Day filed to force the Borough
convene a committee so that Day's grievance could proceed to arbitration.
75. The Commission's attorney because of his bias based on the numerous ex
parte communications with the Borough and its agents and his former
professional relationship with the Borough, ruled in the Borough's favor on all
major legal issues and nearly all evidenciary issues presented at Day's
hearing.
76. The Commission's attorney because of his bias based on the numerous ex
parte communications with the Borough and its agents and his former
professional relationship with the Borough, advised the Commission to find
that Day and all his witnesses were not credible and all the Borough's
witnesses were credible even though all but two Borough's witnesses had
admitted former concealment of issues and facts from fellow police officers,
the Chief of Police or the Borough Council.
19
77. The Commission's attorney because of his bias based on the numerous ex
parte communications with the Borough and its agents and his former
professional relationship with the Borough, advised the Commission that the
members should find in favor of the Borough and against Day.
78. The Commission's attorney because of his bias based on the numerous ex
parte communications with the Borough and its agents and his former
professional relationship with the Borough, proposed findings of facts and
conclusions of laws favoring the Borough's position over Day.
79. The Commission accepted the proposal's of its solicitor even knowing of his
ex parte communications with the Borough and his former professional
relationship with the Borough and accepted his proposals carte blanche.
80. The former professional relationship between Rudolf and the Borough tainted
Rudolfs rulings during Day's hearing before the Commission.
81. The ex parte communications between the borough manager and Rudolf
before and during the hearings before the Commission tainted Rudolf s
rulings during Day's hearing before the Commission.
82. The former professional relationship between Rudolf and the Borough tainted
the Commission's rulings during Day's hearing before the Commission.
83. The ex parte communications between the borough manager and Rudolf
before and during the hearings before the Commission tainted Commission's
final decision.
20
84. The bias conduct of Rudolf during the hearing toward Day, Day's witness,
Day's theories and Day's counsel during the hearing Borough tainted the
Commission's rulings during Day's hearing before the Commission.
85. The bias conduct of Rudolf during the hearing toward Day, Day's witness,
Day's theories and Day's counsel during the hearing Borough tainted the
Commission's final decision.
86. The bias conduct of Rudolf during the hearing toward the Borough, the
Borough's witnesses, the Borough's theories, and the Borough's counsel
during the hearing Borough tainted the Commission's rulings during Day's
hearing before the Commission.
87. The bias conduct of Rudolf during the hearing toward the Borough, the
Borough's witnesses, the Borough's theories, and the Borough's counsel
during the hearing Borough tainted the Commission's final decision.
88. At no time prior to the Commission's final decision did Day or his counsel
know that Attorney Rudolf had a former professional relationship with the
Borough of Carlisle and had represented the Borough in labor and
employment issues.
89. The relationship between Rudolf and the Borough was intentionally concealed
from Day and Day's counsel.
90. At no time prior to the Commission's final decision did Day or his counsel
know that the Borough manger had had ex parte communications with
attorney Rudolf and the Commission.
21
91. The ex parte communications between the Borough's manager and Attorney
Rudolf and the Commission were intentionally concealed from Day and his
counsel.
92. Day was denied due process of the law.
93. The former professional relationship between the Commission's Attorney and
the Borough created the appearance of bias.
94. The ex parte communications between Borough manager and the Commission
and its attorney created the appearance bias.
95. The former professional relationship between the Commission's Attorney and
the Borough created bias.
96. The ex parte communications between Borough manager and the Commission
and its attorney created bias.
97. Day was denied the constitutional guarantee to have his matter heard by an
tribunal with no bias or an appearance of bias.
98. The Commission ruled in favor of the Borough and against Day.
99. Day duly appealed the Commission's decision to this Court raising many legal
and factual issue.
ioo.Day argued, inter alia, that the Commission and its attorney were bias based
on possible ex parte communications which were denied by the Borough and
the Commission.
t oi.Day also argued to this Court that based on numerous instances of bias on the
part of the Commission's attorney as detailed in an Addendum that the
22
Commission's attorney acted more as a prosecutor than a neutral hearing
officer.
102. On February 11, 2005, by Order of Judge Edgar B. Bayley, this Court
dismissed Day's appeal.
103. On February 22, 2005, Day and his counsel became aware of the fact that
Bean, Schorpp, Rudolf and the Commission had concealed the fact that
Rudolf had a former professional relationship with the Borough.
104. On February 22, 2005, Day and his counsel became aware of the fact that
Bean, had ex pane communications with Rudolf and the Commission prior to
the hearings before the Commission and also had written and ex parte
communications with Rudolf, during the hearing had begun before the
Commission.
105. Day did not know nor should he have none of the said parties'
concealments.
106. For a party to challenge an adjudication on the basis of newly discovered
evidence, it is imperative that the evidence be of such a nature that it could not
have been obtained at the time of trial by an exercise of reasonable diligence
and that its introduction alone is likely to have had a significant impact on the
result. lfelmi r. KockwelX hTfz. Co., 389 Pa. 21. 26. 13I A. 2d 62.1625
1( 9577. Bata v. Central Penn National Bank, 423 Pa. 373, 224 A.2d 174
(1966), cent denied 386 U.S. 1007, 18 L.Ed. 433, 87 S. Ct. 1348 (1967)
107. Because of the Borough's, Bean's, Schorpp's, Rudolf's and the
Commission's said intentional concealment of material facts, the record
23
below was neither full nor complete and therefore this Court has the power
pursuant to 2 Pa. C.S. Section 754 (a) to reopen the matter and hold a de novo
hearing.
WHEREFORE, Day prays that based on this newly uncovered evidence, this Court open
the record, conduct a de nova hearing, permit Day to introduce the newly discovered
evidence of bias which had been concealed from him. Following review of such
evidence, Day prays that this Court will then reconsider its former decision and reverse
the decision of the Commission.
B. Grounds to Reopen Record and Hold New Hearing Based on Discovery of New
Evidence - Full and Complete Record Below - Upon Due Cause Shown
108. Petitioner herein incorporates paragraphs 1-104 as though they were more
fully set forth herein.
109. Day has shown due cause why he should be permitted to raise the new
issues brought now before the Court.
110. Because of the Borough's, Bean's, Schorpp's, Rudolf s and the
Commission's said intentional concealment of material facts, even if the
record below was full and complete, this Court has the power pursuant to 2
Pa. C.S. Section 753 (a) which states: A party who proceeded before a local
agency under the terms of a particular statute, home rule charter, or local
ordinance or resolution shall not be precluded from questioning the validity of
the statute, home rule charter or local ordinance or resolution in the appeal,
but if a full and complete record of the proceedings before the agency was
made such party may not raise upon appeal any other question not raised
24
before the agency (notwithstanding the fact that the agency may not be
competent to resolve such question) unless allowed by the court upon due
cause shown. ; and 42 Pa. C.S. § 706 relating to appeals and 42 Pa.C.S. § 5505
relating to Modification of orders.
WHEREFORE, Day prays that based on this newly uncovered evidence, this Court open
the record, conduct a hearing, permit Day to introduce the newly discovered evidence of
bias which had been concealed from him. Following review of such evidence, Day prays
that this Court will then reconsider its former decision and reverse the decision of the
Commission.
C. Grounds to Reopen Record and Hold New Hearing Based on Discovery of New
Evidence - Equitable Considerations
111. Petitioner herein incorporates paragraphs 1-104 as though they were more
fully set forth herein.
112. Because of the Borough's, Bean's, Schorpp's, Rudolf s and the
Commission's said intentional concealment of material facts, even if the
record below was full and complete, this Court has the power pursuant to 2
Pa. C.S. Section 753 (b) EQUITABLE RELIEF. --The remedy at law
provided by subsection (a) shall not in any manner impair the right to
equitable relief heretofore existing, and such right to equitable relief is hereby
continued, notwithstanding the provisions of subsection (a)."; and 42 Pa. C.S.
§ 706 relating to appeals and 42 Pa.C.S. § 5505 relating to Modification of
orders.
25
113. The equitable maxim: quod alias bonum et justum est, si per vim vel
fraudem petatur, malum et injustum efftcitur, that the law doth so abhor fraud
and covin, that all acts, as well judicial as others, and which of themselves are
just and lawful, yet being mixt with fraud and deceit, are in judgment of law
wrongful and unlawful," is an equitable principal of the Courts of this
Commonwealth. Mitchell v. Kintzer, 5 Pa. 215 (1847)
114. "[A]II deceitful practices in depriving or endeavouring to deprive another
of his known right by means of some artful device or plan contrary to the
plain rules of common honesty, is fraud." Mitchell v. Kintzer, 5 Pa. 215 (1847)
115. The above detailed instances of concealment on the part of Bean, Schorpp,
the Commission and Rudolf constituted deceit and'. fraud upon Day.
116. For a party to challenge an adjudication on the basis of newly discovered
evidence, it is imperative that the evidence be of such a nature that it could not
have been obtained at the time of trial by an exercise of reasonable diligence
and that its introduction alone is likely to have had a significant impact on the
result. llelrni v_ Roc/nnell &tfg. Co.. 389 Pa. 21. 26. 131 A. 2d 622. 625
11 957). Bata v. Central Penn National Bank, 423 Pa. 373, 224 A.2d 174
(1966), Bert denied 386 U.S. 1007, 18 L.Ed. 433, 87 S. Ct. 1348 (1967)
117. Day did not know nor should he have none of the said parties'
concealment.
26
118. The said parties had a duty to communicate the knowledge of Rudolf s
former professional relationship with the Borough and of Bean's ex parte
communications with the Commission and Rudolf.
WHEREFORE, Day prays that based on this newly uncovered evidence, this Court,
based on its equitable powers open the record, conduct a hearing, permit Day to introduce
the newly discovered evidence of bias which had been concealed from him. Following
review of such evidence, Day prays that this Court will then reconsider its former
decision and reverse the decision of the Commission.
Respectfully submitt4
Date: March 11, 2005 3?Oph D. BuckleyA
Attorney for Petitioner
I.D. # 38444
1237 Holly Pike
Carlisle, PA 17013-4435
(717) 249-2448
27
VERIFICATION
I, Thomas L. Day, Jr., Petitioner in the foregoing matter verify that I have read the
foregoing Motion and the statements made therein are true and correct to the best of my
knowledge and belief.
I understand that statements made herein are subject[ to the penalties of Title 18,
Section 4904 relating to unworn statements to authorities.
Date: March 11, 2005 'W
THOMAS L. DAY, JR.
THOMAS L. DAY, JR., IN THE COURT OF COMMON PLEAS OF
Petitioner CUMBERLAND COUNTY, PENNSYLVANIA
V.
CIVIL SERVICE COMMISSION OF :
THE BOROUGH OF CARLISLE,
Respondent NO. 04-1346 CIVIL TERM
V.
BOROUGH OF CARLISLE,
Intervenor
CERTIFICATE OF SERVICE
I HEREBY CERTIFY THAT A TRUE AND CORRECT COPY OF PETITONER'S
MOTION TO OPEN RECORD, MOTION FOR A NEW HEARING TO INTRODUCE
NEW EVIDENCE, AMENDED MOTION TO RECONSIDER AND MOTION TO
SUPPLEMENT RECORD, WAS DULY SERVED UPON THE FOLLOWING
PERSONS OR ENTITIES IN THE ABOVE CAPTIONED MATTER:
BY UNITED STATES FIRST-CLASS MAIL, POSTAGE PREPAID:
Edward L. Schorpp, esquire
10 E. High Street
Carlisle, PA 17013
Date: February 25, 2005
Joseph C. Rudolf, Esquire
Reed Smith, LLP
2500 One Liberty Place
1650 Market Street
Philadelphia, PA 19103
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THOMAS L. DAY, JR., : IN THE COURT OF COMMON PLEAS OF
Petitioner
: CUMBERLAND COUNTY,
: PENNSYLVANIA
v
CIVIL SERVICE COMMISSION OF
THE BOROUGH OF CARLISLE,
Respondent
v
BOROUGH OF CARLISLE
Intervenor
NO. 04-1346 CIVIL TERM
RESPONSE OF THE CIVIL SERVICE COMMISSION OF
THE BOROUGH OF CARLISLE TO MOTION TO
RECONSIDER AND MOTION TO SUPPLEMENT RECORD
AND NOW, comes the Civil Service Commission of the Borough of Carlisle
("Commission"), by and through its counsel Reed Smith LLP, and responds to the Rule to Show
Cause why the Petitioner's Motion to Reconsider and Motion to Supplement Record should not
be granted as follows:
Admitted.
2. Admitted.
Admitted in part, denied in part. It is admitted that following a hearing, the
Commission upheld the Borough's decision to terminate Petitioner's employment. It is denied
that the Commission held arguments in this matter.
4. Admitted.
Denied. By way of further answer, the Commission is without knowledge or
information sufficient to form a belief as to the truth of the averments regarding depositions taken
in a federal lawsuit filed by Petitioner against the Borough and others, and these allegations are
therefore denied. Likewise, the Commission is without knowledge or information sufficient to
form a belief as to when any such information was "for the first time made available to
Petitioner," and these allegations are therefore denied. Also, by way of further answer, Petitioner
is without standing to question or challenge the selection of the solicitor for the Commission.
Any remaining averments in paragraph 5 are denied.
a. Denied. By way of further answer, the Commission is without knowledge
or information sufficient to form a belief as to the truth of the averments in subparagraph
a, and the same are therefore denied.
b. Admitted in part and denied in part. It is admitted only that the
Commission did not ask the Borough Manager or the Borough Solicitor to determine who
they desired to serve as Solicitor for the Civil Service Commission. It is denied that the
Borough Solicitor or the Borough Manager made the determination as to who would serve
as Solicitor to the Commission. That decision was made by Commission Member
Benjamin Francavilla.
C. Admitted in part and denied in part. It is admitted only that Joseph Rudolf,
Esquire, is one of many attorneys who has provided counsel to the Borough of Carlisle on
municipal labor matters in the past, all of which such matters were unrelated to the
substance of Petitioner's appeal. The remaining allegations of subparagraph c are denied.
d. Admitted. By way of further answer, it is expressly denied that Joseph
Rudolf, Esquire, advised or played any role in the Borough's decision to terminate
Petitioner's employment.
e. Denied as stated. It is admitted only that Joseph Rudolf, Esquire, was one
of two names provided to Commission member Ben Francavilla. The remaining
allegations in this subparagraph are denied.
f. Admitted.
g. Admitted in part and denied in part. It is admitted that the role of a civil
service commission solicitor is to provide independent legal guidance to the Commission.
The Commission expressly denies any averment, suggestion or innuendo by Day that
Attorney Rudolf did not provide the Commission with such guidance or that he was in any
way biased either for or against the Borough or Day. By way of further answer, the
averments contained in this paragraph appear to suggest an improper motive in the
Borough providing suggestions to the Commission as to the individual to serve as its
Solicitor. Any such suggestion demonstrates a profound ignorance of the relationship
between a civil service commission and its appointing authority as well as the controlling
appellate court decisions construing that relationship. Specifically, pursuant to well-
established decisions of Pennsylvania Appellate Courts, an appointing authority has the
ultimate discretion to determine who will serve as counsel to an administrative body
because the appointing authority is responsible for the payment of the legal fees charged
by the counsel. See Borough of Blawnox Council v. Olszewski, 505 Pa. 176, 477 A.2d
1322 (Pa. 1984). Accordingly, in this matter, the Commission respectfully submits that
the Borough would have been squarely within its rights to simply appoint a person of the
Borough's choosing to serve as the Commission's solicitor without even consulting the
Commission.
h. Denied as a conclusion of law to which no response is required. To the
extent a response is deemed required, it is expressly denied that the Commission was
obligated to hold a meeting to appoint Attorney Rudolf. By way of further answer,
pursuant to well-established decisions of Pennsylvania Appellate Courts, an appointing
authority has the ultimate discretion to determine who will serve as counsel to an
administrative body (such as a civil service commission) because the appointing authority
is responsible for the payment of the legal fees charged by the counsel. Accordingly, in
this matter, the Commission respectfully submits that the Borough would have been
squarely within its rights to simply appoint that person as the Commission's solicitor
without consulting the Commission.
i. Denied as stated. It is admitted only that, after the Commission's selection
of Joseph Rudolf, Esquire as its Solicitor, the Borough Manager contacted Attorney
Rudolf to arrange for the retention of his services. It is specifically denied that there were
any improper ex parte communications between the Borough Manager and Attorney
Rudolf. To the contrary, pursuant to the Borough Code, 53 P.S. § 46116, the Borough
Council, acting through the Borough Manager, is responsible for retention of counsel for
the Commission. The Borough Manager and Attorney Rudolf discussed an engagement
letter and hourly rates, and the Borough Manager informed Attorney Rudolf about the
general nature of the charges against Petitioner. Subsequent communications between the
Borough Manager and Attorney Rudolf related to the legal fees charged for Attorney
Rudolf s services. The remaining averments of this subparagraph are denied.
j. Denied as stated. The Commission is without knowledge or information
sufficient to form a belief as to the truth of the averments regarding the Borough
Manager's purported reaction to a news article in the Carlisle Sentinel and these
averments are, therefore, denied. It is denied that the substance of the handwritten note on
a copy of a July 15, 2003 news article relating to Petitioner's hearing sent to Attorney
Rudolf by the Borough Manager constitutes an improper ex parte communication. By
way of further answer, Exhibit A to Petitioner's Motion for Reconsideration is a written
document, the content of which speaks for itself. The remaining averments of this
subparagraph are denied.
k. Denied as stated. Exhibit A to Petitioner's Motion for Reconsideration is a
written document, the content of which speaks for itself. The remaining averments of this
subparagraph are denied.
1. Denied as stated. Exhibit A to Petitioner's Motion for Reconsideration is a
written document, the content of which speaks for itself. The remaining averments of this
subparagraph are denied.
M. Denied. It is specifically denied that there were any improper ex parte
communications between the Borough Manager and Attorney Rudolf. To the contrary,
pursuant to the Borough Code, 53 P.S. § 46116, it is the Borough's responsibility to
provide for the Commission's solicitor, and the communications between the Borough
Manager and Attorney Rudolf related to the legal fees charged for Attorney Rudolf's
services. The remaining averments of this subparagraph are denied.
n. Denied as stated. It is admitted only that the members of the Commission
and Attorney Rudolf did not discuss with Petitioner, Attorney Rudolf's past rendition of
legal services to the Borough, all of which were unrelated to the substance of Petitioner's
appeal. It is denied that either had a duty to so inform Petitioner. The Commission further
denies the baseless innuendo of this subparagraph, which suggests that Attorney Rudolf s
rendition of such legal services prohibited his serving as independent legal counsel to the
Commission. The remaining averments of this subparagraph are denied.
o. Denied as stated. It is admitted that the members of the Commission and
Attorney Rudolf did not inform Petitioner of communications between the Borough
Manager and Attorney Rudolf regarding payment for legal services rendered to the
Commission. It is specifically denied that either had a duty to so inform Petitioner or his
counsel, and is denied that any improper ex parte communications occurred. The
remaining averments of this subparagraph are denied.
p. Denied. The contents of the written documents referenced in this
subparagraph speak for themselves. By way of further answer, it is denied that there were
any improper ex parte communications between the Borough and Solicitor for the
Commission. The remaining averments of this subparagraph are denied.
q. Denied. The Commission is without knowledge or information sufficient
to form a belief as to the truth of the averments contained in subparagraph q, and the same
are therefore denied. By way of further answer, Attorney Rudolfs providing legal
services to the Borough in the past in no way precluded his service as the Commission's
Solicitor. Moreover, Petitioner's suggestion that he would have sought the removal of the
Commission's Solicitor under certain circumstances is simply absurd and again
demonstrates a profound ignorance of municipal law. No entity other than the Borough
had the authority and ability to lawfully appoint or remove an individual as solicitor to the
Commission.
r. Denied. The Commission is without knowledge or information sufficient
to form a belief as to the truth of the averments contained in subparagraph r, and the same
are therefore denied. By way of further answer, Attorney Rudolfs providing legal
services to the Borough in the past in no way precluded his service as the Commission's
solicitor. Moreover, Petitioner's suggestion that he would have sought the removal of the
Commission's Solicitor under certain circumstances is simply absurd and again
demonstrates a profound ignorance of municipal law. No entity, including Petitioner and
his Counsel, other than the Borough had the authority and ability to lawfully appoint or
remove an individual as solicitor to the Commission.
S. Denied. There were no improper ex parte communications between the
Borough and Attorney Rudolf, and therefore, the existence or non-existence of such
communications could not and were not "intentionally withheld" from Petitioner. It is
telling that Petitioner attaches no deposition testimony in support of his frivolous
allegations.
6. Denied. The averments contained in paragraph 6 are conclusions of law to which
no response is required. To the extent a response is deemed required, the allegations in paragraph
6 are denied. By way of further answer, Petitioner's argument in this respect is misguided and
absurd, as Petitioner appears to be confused about the role of Attorney Rudolf as Solicitor to the
Commission. Attorney Rudolf was not a member of the Commission, but merely advised the
Commission on the legal principles implicated in Petitioner's appeal.
7. Denied. The averments contained in paragraph 7 are conclusions of law to which
no response is required. To the extent a response is deemed required, the allegations in paragraph
7 are denied.
WHEREFORE, the Commission respectfully requests that the Motion(s) be dismissed.
REED SMITH LLP
By
Joseph .. R olf
I.D. No. 44189
Amy Z. Snyder
I.D. No. 88899
Reed Smith LLP
2500 One Liberty Place
1650 Market Street
Philadelphia, PA 19103
(215) 851-8100
Attorneys for Respondent,
Civil Service Commission of the Borough
of Carlisle
Date: March 7, 2005
VERIFICATION
I verify that the statements contained herein are true and correct. I understand that false
statements made herein are subject to the penalties of 18 Pa. C.S.A. §4904, relating to unswom
falsification to authorities.
Dated:
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Response of the Civil Service Commission of
the Borough of Carlisle to the Motion to Reconsider and Motion to Supplement Record was
served this date by first class mail, postage prepaid, on the following:
Joseph D. Buckley, Esquire
1237 Holly Pike
Carlisle, PA 17013
Edward L. Schorpp, Esquire
Ten East High Street
Carlisle, PA 17013
(717) 243-3341
AmS er '
Date: March 7, 2005
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THOMAS L. DAY, JR.
V.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL SERVICE COMMISSION OF
THE BOROUGH OF CARLISLE
V.
BOROUGH OF CARLISLE
04-1346 CIVIL TERM
IN RE: APPEAL FROM ORDER OF THE CIVIL SERVICE COMMISSION
OF THE BOROUGH OF CARLISLE
BEFORE BAYLEY, J.
ORDER OF COURT
AND NOW, this It I- day of February, 2005, the appeal of Thomas L. Day
from an order of the Civil Service Commission of the Borough of Carlisle dated March
1, 2004, IS DISMISSED.
By the C,odrt,
Edgar B. Bayley, J.
Joseph D. Buckley, Esquire / )? 4, 'A," oZ?n/o a'
For Thomas L. Day r
Joseph C. Rudolf, Esquire
For the Civil Service Commission y^^--
Edward L. Schorpp, Esquire 1
For Borough of Carlisle / iv+. Q.?li :sal d?,./os
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THOMAS L. DAY, JR., IN THE COURT OF COMMON PLEAS OF
Petitioner CUMBERLAND COUNTY, PENNSYLVANIA
V.
CIVIL SERVICE COMMISSION OF:
THE BOROUGH OF CARLISLE,
Respondent NO. 04-1346 CIVIL TERM
V.
BOROUGH OF CARLISLE,
Intervenor
RULE TO SHOW CAUSE
AND NOW this ')j--day of Vs 2005 a Rule is hereby issued upon
the Respondent and the Intervenor to show cause why the Petitioner's Motion for
Reconsideration and Motion to Supplement Record should not be granted. Rule
returnable within five (5) days of this Order.
oh
BY THE COURT
Judge
1
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THOMAS L. DAY, JR. IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
V.
CIVIL SERVICE COMMISSION OF
THE BOROUGH OF CARLISLE
V.
BOROUGH OF CARLISLE : 04-1346 CIVIL TERM
ORDER OF COURT
AND NOW, this day of March, 2005, following review of the
motion filed by Thomas L. Day, Jr., and the answer filed by the Borough of Carlisle, and
concluding that the averments in the petition provide no legal basis for the relief
requested which is for the court to:
reconsider its former decision based on the newly discovered evidence,
reverse its former decision and sustain Petitioner's appeal, or remand the
matter to The Civil Service Commission for a de novo hearing. In the
alternative, Petitioner prays that this Court open the record in this matter
to permit introduction of this evidence so that the matter may be reviewed
by the Commonwealth Court.
The motion IS DENIED without further proceedings.
oseph D. Buckley, Esquire
For Thomas L. Day
,jarge'ph C. Rudolf, Esquire
For the Civil Service Commission
ward L. Schorpp, Esquire
For Borough of Carlisle
By the Court
i
Edgar B. Bay ey, J.
:sal 03-09'05
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THOMAS L. DAY, JR., : IN THE COURT OF COMMON PLEAS OF
Petitioner : CUMBERLAND COUNTY, PENNSYLVANIA
V.
CIVIL SERVICE COMMISSION OF :
THE BOROUGH OF CARLISLE,
Respondent NO. 04-1346 CIVIL TERM
V.
BOROUGH OF CARLISLE,
Intervenor
NOTICE OF APPEAL
NOTICE IS HERBY GIVEN that Thomas L. Day, Jr., Petitioner above-named,
hereby appeals to the Commonwealth Court of Pennsylvania from the order entered in
this matter on the I 1 th day of February, 2005. The order has been entered in the docket as
evidenced by the attached copy of the docket entries. The Petitioner understands that as a
general rule the Court of Common Pleas may no longer proceed further in this matter;
however, pursuant to Rule 1701 (b) (3) of the Pennsylvania Rules of Appellate Procedure
authorize the Court of Common Pleas to grant reconsideration of its former order. Further
pursuant Said Rule 1701 in subsection (b)(4) the Court of Common Pleas is authorized
to preserve testimony where required in the interest of justice.
I.D. No. 38444
1237 Holly Pike
Carlisle, PA 17013
(717) 249-2448
JocBLaw4aoLcom
PYS511 Cumberland County Prothonotary's Office Page 1
Civ il Case Print
2004-01346 DAY THOMAS L JR (vs) CIVIL SERVICE COMMISSION
Reference No..: Filed........: 3/29/2004
Case Type.....: PETITION
00
J
d Time.........:
Execution Date 3:22
0/00/0000
gment ...
u
Jude Assigned: BAYLEY EDGAR B Jury Trial....
Disposed Date
0/00/0000
Disposed Desc.:
------------ Case Comments ---- .
--------- Higher Crt 1.:
Higher Crt 2.:
******************************** ************************************************
General Index Attorney Info
DAY THOMAS L JR PETITIONER BUCKLEY JOSEPH D
845 BALTIMORE PIKE
GARDNERS PA 17324
CIVIL SERVICE COMMISSION OF RESPONDANT SNYDER AMY Z
THE BOROUGH OF CARLISLE
53 WEST SOUTH STREET
CARLISLE PA 17013
* Date Entries
********************************************************************************
- - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - -
3/29/2004 PETITION FOR REVIEW AND REQUEST FOR HEARING REGARDING POSSIBLE
IMPROPER CONDUCT OF RESPONDENT COMMISSION AND REQUEST FOR
ACCEPTANCE OF ADDITIONAL EVIDENCE
--------------------------------------------------------------------
3/30/2004 CERTIFICATE OF SERVICE - PETITION FOR REVIEW JOSEPH D BUCKLEY ESQ
--------------------------------------------------------------------
4/05/2004 ORDER OF COURT - DATED 445/04 - A PETITION FOR REVIEW IN THE
NATURE OF AN APPEAL HAVING BEEN FILED IN THIS MATTER THE
TRANSCRIPTION OF THE PROCEEDINGS BEFORE THE CIVIL SERVICE
COMMISSION OF HTE BOROUGH OF CARLISLE IS DIRECTED TO BE FILED WITH
THE COURT - ANY COSTS ASSOCIATED WITH THIS FILING SHALL BE
INCURRED BY APPELLANT - BY THE COURT GEORGE E HOFFER PJ COPIES
MAILED
------------------------------------------------ - ------------------
4/07/2004 PETITION TO INTERVENE; - EDWARD L SCHORPP ESQ - SOLICITOR FOR
CARLISLE BORO
------------------- - ----------------------------------------------
4/13/2004 ENTRY OF APPEARANCE FOR THE RESPONDENT BY AMY Z SNYDER ESQ
-------------------------------------------------------------------
4/19/2004 ORDER OF COURT - DATED 4/19/04 - IN RE PETITION TO INTERVENE A
RULE IS ISSUED UPON PETITIONER SERVICE COMMISSION OF THE BOROUGH
OF CARLISLE TO SHOW CAUSE WHY THE PRAYER OF THE PETITION SHOULD
NOT BE GRANTED RULE RETURNABLE 10 DAYS FROM SERVICE - BY THE COURT
GEORGE E HOFFER PJ COPIES MAILED
-------------------------------------------------------------------
4/19/2004 RESPONDENT'S ANSWER TO PETITION FOR REIVIEW AND REQUESTED FOR
HEARING NEW MATTER - BY AMY Z SNYDER ESQ
-------------------------------------------------------------------
4/30/2004 RESPONDENT'S RESPONSE TO THE COURT'S APRIL 19, 2004 RULE TO SHOW
CAUSE WHY THE PRAYER OF THE PETITION TO INTERVENE SHOULD NOT BE
GRANTED - BY JOSEPH C RUDOLF ESQ FOR RESPONDENT
-------------------------------------------------------------------
5/03/2004 PETITIONER'S RESPONSE TO RULE TO SHOW CUASE WHY PETITION TO
INTERVENE SHOULD NOT BE GRANTED - BY JOSEPH D BUCKLEY ESQ
-------------------------------------------------------------------
5/05/2004 ORDER OF COURT - DATED 5/5/04 - IN RE PETITION TO INTERVENE OF THE
BOROUGH OF CARLISLE AND ANY RESPONSE THERETO THE PETITION TO
INTERVENE IS HEREBY GRANTED - BY THE COURT GEORGE E HOFFER PJ
COPIES MAILED 5/6/04
-------------------------------------------------------------------
5/07/2004 PETITION TO MAKE RULE ABSOLUTE - BY EDWARD L SCHORPP ESQ
-------------------------------------------------------------------
5/11/2004 RESPONSE OF THE BOROUGH OF CARLISLE TO PETITION FOR REVIEW AND
REQUEST FOR HEARING - BY EDWARD L SCHORPP ESQ
-------------------------------------------------------------------
5/13/2004 ORDER OF COURT DATED 5/11/04 - UPON CONSIDERATION OF THE PETTION
THE RULE TO SHOW CAUSE IS MADE ABSOLUTE AND THE PETITION TO
INTERVENE OF THE BORO OF CARLISLE IS HEREBY GRANTED - BY THE COURT
- GEORGE E HOFFER PJ COIES MAILED
PYS511 Cumberland County Prothonotary's Office Page
Civil Case Print
2004-01346 DAY THOMAS L JR (vs) CIVIL SERVICE COMMISSION
Reference No..: Filed........: 3/29/2004
Case Type ..... : PETITION Time.........: 3:22
Judgment..... 00 Execution Date 0/00/0000
Judge Assigned: BAYLEY EDGAR B Jury Trial....
Disposed Desc.: Disposed Date. 0/00/0000
------------ Case Comments ------------- Higher Crt 2.:
-------------------------------------------------------------------
5/25/2004 REPLY TO NEW MATTER OF CIVIL SERVICE COMMISSION - BY JOSEPH D
BUCKLEY ESQ FOR PETITIONER
-------------------------------------------------------------------
5/25/2004 REPLY TO NEW MATTER OF BOROUGH OF CARLISLE - BY JOSEPH D BUCKLEY
ESQ FOR PETITIONER
-------------------------------------------------------------------
6/30/2004 MOTION OF THE BOROUGH OF CARLISLE FOR A PROTECTIVE ORDER
PROHIBITING PETITIONER'S DISCOVERY EFFORTS BY EDWARD K SCHORPP ESQ
-- ----------------------------------------------------------------
7/09/2004 ORDER OF COURT - DATED 7/8/04 - IN RE MOTION OF THE BOROUGH OF
CARLISLE FOR A PROTECTIVE ORDER PROHIBITING PETITIONER'S DISCOVERY
EFFORTS - UPON CONSIDERATION OF THE WITHIN MOTION THOMAS L DAY JR
IS PROHIBITED FROM ENGAGING IN ANY DISCOVERY IN THIS APPEAL - THE
BOROUGH OF CARLISLE IS EXCUSED FROM COMPLYING WITH THE DISCOVERY
NOTICE OF 622/04 AND FROM ANY FURTHER DISCOVERY EFFORTS ABSENT
FURTHER ORD R OF COURT - FURTHER IT APPEARING THAT INSUFFICIENT
CAUSE HAVING BEEN PRESENTED TO RE-OPEN THE RECORD THIS APPEAL
SHALL BE DECIDED UPON THE RECORD FILED BY THE CIVIL SERVICE
COMMISSION OF THE BOROUGH OF CARLISLE - BY GEORGE E HOFFER PJ -
COPIES MAILED 7/9/04
-------------------------------------------------------------------
8/30/2004 PRAECIPE FOR LISTING CASE FOR ARGUMENT - APPEAL FROM DECISION OF
CIVIL SERVICE COMMISSION - BY EDWARD L SCHORPP ESQ
-------------------------------------------------------------------
2/11/2005 OPINION AND ORDER OF COURT - DATED 2/11/05 - IN RE APPEAL FROM
ORDER OF THE CIVL SERVICE COMMISION OR THE BOROUGH OF CARLISLE
DATED 32/10/OIS DISMISSED - BY THE COURT EDGAR B BAYLEY J COPIES
MLED -------------------------------------------------------------------
2/25/2005 PE'T'ITION TO RESONSIDER AND MOTION TO SUPPLEMENT RECORD BY JOSEPH B
BUCKLEY ATTY
-------------------------------------------------------------------
3/O1/2005 RULE TO SHOW CAUSE - DATED 3/1/05 - A RULE IS HEREBY ISSUED UPON
THE RESPONDENT AND THE INTERVENOR TO SHOW CAUSE WHY THE
PETITIONER'S MOTION FOR RECONSIDERATION TO SUPLEMENT RECORD SHOULD
NOT BE GRANTED RULE RETURNABLE WITHIN 5 DAYS OF THIS ORDER - BY
THE COURT EDGAR B BAYLEY J COPIES MAILED
-------------------------------------------------------------------
3/03/2005 RESPONSE OF THE BOROUGH OF CARLISLE TO MOTION TO RECONSIDER AND
MOTIN TO SUPPLEMENT RECORD - BY EDWARD L SCHORPP ESQ
-------------------------------------------------------------------
3/08/2005 ORDER OF COURT - DATED 3/8/05 - FOLLOWING REVIEW OF THE MOTION
FILED BY THOMAS L DAY JR AND THE ANSWER FILED BY BORO OF CARLISLE
AND CONCLUDING THAT THE AVERMAMENTS IN THE PETITION PROVIDE NO
LEGAL BASIS FOR THE RELIEF REQUESTED WHICH IS FOR THE COURT EDGAR
B BAYLEY J COPIES MAILED 3/9/05
-------------------------------------------------------------------
3/11/2005 MOTION TO OPEN RECORD MOTION FOR A NEW HEARING TO INTRODUCE NEW
EVIDENCE AMENDED MOTION TO RECONSIDER AND MOTION TO SUPPLEMENT
RECORD BY JOSEPH D BUCKLEY ESQ
- - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - -
********************************************************************************
* Escrow Information
* Fees & Debits Beg Bal Pmts/Adj End Bal
******************************** ******** ****** *******************************
PETITION 35.00 35.00 .00
TAX ON PETITION .50 .50 .00
SETTLEMENT 5.00 5.00 .00
AUTOMATION FEE 5.00 5.00 .00
JCP FEE 10.00 10.00 .00
------------------------ ------------
55.50 55.50 .00
********************************************************************************
* End of Case Information
•PYS511 Cumberland County Prothonotary's Office Page 3
Civil Case Print
200P--01346 DAY THOMAS L JR (vs) CIVIL SERVICE COMMISSION
Reference No..: Filed........: 3/29/2004
Case Type ..... : PETITION Time.........: 3:22
Judgment.. 00 Execution Date 0/00/0000
Judge Assigned: BAYLEY EDGAR B Jury Trial...
Disposed Desc.: Disposed Date. 0/00/0000
------------ Case Comments ------ Higher Crt 1.:
Higher Crt 2.:
TR?
In Te l o
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4,T
THOMAS L. DAY, JR., IN THE COURT OF COMMON PLEAS OF
Petitioner CUMBERLAND COUNTY, PENNSYLVANIA
V,
CIVIL SERVICE COMMISSION OF:
THE BOROUGH OF CARLISLE.
Respondent NO. 04-1346 CIVIL TERM
V.
BOROUGH OF CARLISLE,
Intervenor
REQUEST FOR TRANSMITTAL OF RECORDS
To the Prothonotary and the Court Administrator:
The undersigned, as counsel for Petitioner, hereby requests that the record in this
matter be transmitted to the Prothonotary of the Commonwealth Court except as those
records necessary for Petitioner's pending Motion before this Court.
I.D. No. 38444
1237 Holly Pike
Carlisle, PA 17013
(717) 249-2448
JoeBLaw@aol.com
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THOMAS L. DAY, JR., IN THE COURT OF COMMON PLEAS OF
Petitioner CUMBERLAND COUNTY, PENNSYLVANIA
V.
CIVIL SERVICE COMMISSION OF :
THE BOROUGH OF CARLISLE,
Respondent NO. 04-1346 CIVIL TERM
V.
BOROUGH OF CARLISLE.
Intervenor
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on March 14, 2005, he served a copy of the
foregoing Notice of Appeal, and Request for Transmittal of Records by first class U.S.
mail, postage prepaid, addressed as follows:
Edward L. Schorpp, Esquire
10 E. High Street
Carlisle, PA 17013
Joseph C. Rudolf, Esquire
Reed Smith, LLP
2500 One Liberty Place
1650 Market Street
Philadelphia, PA 19103
The Honorable Edgar B. Bayley Court Administrator
Judge of the Court of Common Pleas Cumberland County Courthouse
Cumberland County Courthouse One Courthouse Square
One Courthouse Square Carlisle, PA 17013
Carlisle, PA 17013
Prothonotary of Cumberland County
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
Attorney for Petitioner
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THOMAS L. DAY, JR. IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
V.
CIVIL SERVICE COMMISSION OF
THE BOROUGH OF CARLISLE
V.
BOROUGH OF CARLISLE : 04-1346 CIVIL TERM
ORDER OF COURT
AND NOW, this 17th day of March, 2005, the motion of Thomas L. Day, Jr., "to
open record, motion for a new hearing to introduce new evidence, amended motion to
reconsider and motion to supplement record," IS DISMISSED FOR LACK OF
JURISDICTION.'
(By the C7Y
r G `
Ab eph D. Buckley, Esquire
For Thomas L. Day, Jr.
j,Xseph C. Rudolf, Esquire
For the Civil Service Commission
ward L. Schorpp, Esquire
For Borough of Carlisle
Edgar B. $ayley, J.
:sal
' On February 11, 2005, an order was entered, supported by a written opinion,
dismissing the appeal of Thomas L. Day, Jr., from an order of the Civil Service
Commission of the Borough of Carlisle dated March 1, 2004. On Monday, March
14, 2005, Day filed an appeal to the Commonwealth Court of Pennsylvania from
the order of February 11th. This court no longer has jurisdiction to provide the
relief requested. 42 Pa.C.S. § 5505; Pennsylvania Rule of Appellate Procedure
1701b(3).
,,
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Thomas L. Day, Jr.,
Appellant
64 L6 C?
V.
Civil Service Commission of
the Borough of Carlisle and
the Borough of Carlisle
No. 550 C.D. 2005
Argued: September 12, 2005
BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge
HONORABLE ROCHELLE S. FRIEDMAN, Judge
HONORABLE JIM FLAHERTY, Senior Judge
OPINION BY PRESIDENT JUDGE COLINS FILED: November 18, 2005
We consider the appeal of Thomas J. Day, Jr. (Day) from the order of
the Court of Common Pleas of Cumberland County (trial court) that dismissed
Day's appeal of the order of the Civil Service Commission (Commission) of the
Borough of Carlisle (Borough) that upheld the Carlisle Borough Council's
(Council) termination of Day's employment as a police officer for the Borough.
The Borough has filed an application for the award of counsel fees which is to be
decided with the merits. We vacate and remand, with instructions.
This matter had its genesis at a meeting of the supervising officers of
the Carlisle Police Department (Department) held on January 3, 2002; the stated
purpose of that meeting was management training for police supervisors. One
subject that was stressed at the meeting by Carlisle Police Chief Stephen L.
Margeson (Margeson) was the proper procedure to use to complain about the
conduct of other officers. Margeson told the attendees, including Day, that the
only acceptable method to lodge a complaint about other officers was to take it
through channels and up the chain of command. All attendees at that meeting,
including Day, were informed that any conduct that violated that procedure would
be considered conduct unbecoming an officer.
According to the record in this matter Day violated that procedure
later that month when, in his own words, he "blew up" in the communications
room of the Department in front of two subordinates, officers Haggerty and Burns,
and his own supervisor, Sergeant Guido. On this occasion Day accused a
Detective Smith of holding a gun to his girlfriend's head, falsifying time records,
and taking money and/or drugs from an investigation. Day also said that Margeson
knew of these occurrences and covered them up. Margeson conducted an
investigation into these claims and determined that they were unsubstantiated.
Margeson met with Day on April 24, 2003 to discuss his findings. At that meeting
Margeson informed Day, verbally and in a letter handed to him at the meeting, that
he was filing formal charges against Day, including the charge of conduct
unbecoming an officer, and that any repetition of conduct such as he exhibited in
the communications room would result in his termination from the Department.
Three days later, Day attended a meeting of his union, the Carlisle
Police Association. After the meeting was adjourned and most of those attending
had left, Day stayed behind with three subordinate officers, Patrolmen Parson,
Heredia, and Brewbaker. Day then repeated the allegations he had made in the
communications room and added the allegation that either a Lt. Pfhal or a Lt.
Walters (Walters) had deleted information concerning a citation issued to Walters'
2
son from the Department's computer database, alluding that whoever had made the
deletion had engaged in criminal conduct. Patrolman Parson told Walters of the
conversation, and Walters told Margeson. Margeson initiated new disciplinary
charges against Day based on what Walters told him, and on May 9, 2003, after
considering those charges, the Carlisle Borough Council terminated Day's
employment. Day appealed his dismissal to the Civil Service Commission of the
Borough of Carlisle and, in writing, requested an open hearing; the Commission
after refusing Day's request for an open hearing, affirmed the Council. Day
appealed to the trial court; the trial court affirmed the Commission and this appeal
followed.
The questions we are asked to determine are 1) whether Day was
denied due process where the Commission denied his request for an open hearing;
2) whether Day's statements made in the communications room and after the union
meeting are protected speech where Day is a public employee; 3) whether Day's
right to free association was violated where he claims that the statements made
after the union meeting had adjourned were protected speech; 4) whether the
Commission violated any right Day may have possessed in the way it permitted the
admission and consideration of evidence against him; 5) whether Day was
prejudiced or his rights were in any way violated where 18 pages of documents
were introduced into evidence before the Commission and all parties agreed that
those 18 pages were not properly before the Commission and would be
disregarded; and 6) whether the Commission erred in allowing the charges lodged
against Day to be expanded at the hearing.1
' Our standard of review of proceeding before a municipal civil service commission, where no
additional evidence is taken before the trial court, is limited to determining whether
constitutional rights, the law, or procedural provisions of the local agency law have been violated
3
Day was denied due process when the Commission refused to grant
his request for an open hearing of his appeal to the extent that that denial was a
violation of the Sunshine Act (Act), 65 Pa. C.S. §704. Section 704 of Act,
provides,
§ 704. Open meetings
Official action and deliberations by a quorum of the
members of an agency shall take place at a meeting open
to the public unless closed under section 707 (relating to
exceptions to open meetings), 708 (relating to executive
sessions) or 712 (relating to General Assembly meetings
covered).
Section 707 referred to above provides that an agency may hold an executive
session pursuant to Section 708, which provides, in pertinent part,
(a) Purpose.--An agency may hold an executive session
for one or more of the following reasons:
(1) To discuss any matter involving the employment,
appointment, termination of employment, terms and
conditions of employment, evaluation of performance,
promotion or disciplining of any specific prospective
public officer or employee or current public officer or
employee employed or appointed by the agency, or
former public officer or employee, provided, however,
that the individual employees or appointees whose rights
could be adversely affected may request, in writing, that
the matter or matters be discussed at an open meeting.
The agency's decision to discuss such matters in
executive session shall not serve to adversely affect the
due process rights granted by law, including those
granted by Title 2 (relating to administrative law and
or whether the findings of the commission are based upon substantial evidence. Moorehead v.
Civil Service Commission, 769 A.2d 1233 (Pa. Cmwlth, 2001).
4
procedure). The provisions of this paragraph shall not
apply to any meeting involving the appointment or
selection of any person to fill a vacancy in any elected
office.
The meeting at which the Commission considered Day's appeal and affirmed his
termination was held "[tlo discuss ... the ... termination of employment ... of [a]
... current public officer or employee" who requested an open hearing. His request
was denied in violation of 65 Pa. C.S. §704. The question of Day's termination
was discussed and acted upon at a meeting of the Commission that should have
been open. That meeting was held in violation of the Act.
Having determined that the meeting was held in violation of the Act
we exercise the discretion granted to us under Section 713 of the Act'" and
invalidate any action taken at that meeting in regard to Day, See Kennedy v. Upper
Milford Township Zoning Hearing Board, 575 Pa. 105, 834 A.2d 1104 (2003),
(citing Ackerman v. Upper Mt. Bethel Township, 567 A.2d 1116 (Pa. Cmwlth.
1989)). In addition, we vacate the orders of the trial court entered in this matter,
and we remand this matter to the trial court with instructions to remand it to the
Commission with instructions to reconsider Day's appeal of the termination of his
employment at an open meeting of that body.
We will not address the other issues that have been raised in this
appeal as our invalidation of the actions taken at the original closed meeting mean
that there is no longer any case or controversy before us and the general rule in our
Section 713 provides, in pertinent part,
Business transacted at unauthorized meeting void
Should the court determine that the meeting did not meet the
requirements of this chapter, it may in its discretion find that any
or all official action taken at the meeting shall be invalid.
5
Commonwealth is that our courts may not exercise jurisdiction to decide issues
that do not determine the resolution of an actual case or controversy. Borough of
Marcus Hook v. Pennsylvania Municipal Retirement Board, 720 A.2d 803 (Pa.
Cmwlth. 1988) (citations omitted). One fact will aid us in our ultimate
consideration of those issues, however, and that is whether Day's union is the
established collective bargaining unit for the police officers of the Borough or if it
is merely an informal association of those officers. This fact should be part of the
record in this matter.
Accordingly, the actions taken by the Commission in regard to the
termination of Day's employment at the closed session at which his employment
was considered are invalidated, the orders of the trial court in this matter are
vacated, and this matter is remanded to the trial court with instructions to remand it
to the Commission with instructions to hold an open hearing on Day's appeal of
his termination.
JAM GARDNER COUNS, President Judge
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Thomas L. Day, Jr.,
Appellant
V.
Civil Service Commission of :
the Borough of Carlisle and
the Borough of Carlisle : No. 550 C.D. 2005
ORDER
AND NOW, this 181h day of November 2005, the orders of the
Court of Common Pleas of Cumberland County in this matter are
VACATED, and this matter is REMANDED to the Court of Common Pleas
of Cumberland County with instructions to remand it to the Civil Service
Commission of the Borough of Carlisle with INSTRUCTIONS to hold an
open hearing on Day's appeal of his termination.
Jurisdiction relinquished.
JAM S GARDNER COLINS, President Judge
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Supreme Court of Pennsylvania
Irene M. Bizzoso, Esq. NliCldle District
Deputy Prothonotary
Norina K. Blynn, Esq. October 24, 2007
Chief Clerk
Certificate of Remittal/Remand of Record
TO: Mr. Curtis R. Long
Prothonotary
RE: Day v. CSC of the Boro of Carlisle et al, Apit
No.85 MAP 2006
Trial Court/Agency Dkt. Number: 04-1346 Civil Term
Trial Court/Agency Name: Cumberland County Court of Common
Pleas
Intermediate Appellate Court Number: 550 CD 2005
P.O. Box 624
Harrisburg, PA 17108
717-787-6181
www.aopc.org
Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572
is the entire record for the above matter.
Contents of Original Record:
Original Record Item Filed Date Description
Commonwealth Court Record July 3, 2006 1 Part
Trial Court Record July 3, 2006 1 Part, 7 Transcripts, 3
Exhibitis
Date of Remand of Record: 10/24/2007
ORIGINAL RECIPIENT ONLY - Please acknowledge receipt by signing, dating, and
returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need
not acknowledge receipt.
Signature
Printed Name
Date
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[J-159-2006]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
CAPPY, C.J., CASTILLE, NEWMAN, SAYLOR, EAKIN, BAER, BALDWIN, JJ.
THOMAS L. DAY, JR.,
Appellee
V.
CIVIL SERVICE COMMISSION OF THE
BOROUGH OF CARLISLE AND THE
BOROUGH OF CARLISLE,
: No. 85 MAP 2006
Appeal from the Order of the
: Commonwealth Court, entered on
November 18, 2005, at No. 550 CD 2005,
vacating and remanding the Order of the
Court of Common Pleas of Cumberland
County, entered on February 11, 2005, at
No. 04-1346 Civil Term.
887 A.2d 793 (Pa. Cmwlth. 2005)
Appellants
MR. JUSTICE CASTILLE
: ARGUED: December 6, 2006
OPINION
DECIDED: September 26, 2007
The Civil Service Commission of the Borough of Carlisle ("Commission") and the
Borough of Carlisle (collectively "appellants") seek a determination from this Court that
Thomas L. Day's closed termination appeal before the Commission did not violate the
Sunshine Act ("Sunshine Act" or "Act"), 65 Pa.C.S. §§ 701-716. Appellee, a police officer,
was terminated by the Carlisle Borough Council in 2003 and, thereafter, appellee filed a
challenge to the termination with the Commission. Prior to hearing the challenge, the
Commission denied a request from appellee that his termination appeal remain open to the
public pursuant to the Act. After several days of hearings, the Commission voted to affirm
appellee's termination. Appellee then appealed, inter alia, the decision of the Commission
to hold a closed hearing to the trial court, which affirmed by holding that the Sunshine Act
did not speak to Commission hearings. The Commonwealth Court, however, reversed on
appellee's further appeal, finding that the Act required the termination hearing to be open.
Because appellee failed to timely pursue his claim in accordance with the Act, we now
reverse and remand, leaving the question of the Act's applicability to Civil Service
Commission termination appeals for another case where the claim is properly presented.
On January 3, 2002, appellee, a corporal with the Carlisle Police Department with
fifteen years of service, attended a meeting for police supervisors conducted by Police
Chief Stephen L. Margeson. Chief Margeson discussed the proper procedure to make a
complaint against a fellow police officer and stated that any complaints made outside the
proper channels would be considered conduct unbecoming an officer. In January of 2003,
appellee violated this policy when, in front of two subordinates and a superior, he accused
a detective of holding a gun to the head of the detective's girlfriend, falsifying time records,
and taking money and drugs from an investigation. Appellee also accused Chief Margeson
of knowingly covering up these incidents. Chief Margeson investigated these claims, found
them to be unsubstantiated, and initiated discipline against appellee on April 24, 2003.
Specifically, Chief Margeson told appellee, both verbally and in a letter, that he was filing
charges against him and that any repetition of such conduct would result in termination.
Three days later, appellee attended a union meeting for the Carlisle Police
Association. During the meeting, appellee requested financial support to defend against
the pending discipline, but the request was tabled. After the meeting, some officers asked
appellee the reasons for his pending discipline. Appellee repeated to three additional
subordinate officers the allegations he had made earlier. He further accused a police
lieutenant of deleting the lieutenant son's name from a police database. The conversation
was later repeated to Chief Margeson, who after conducting an internal investigation,
[J-159-2006] - 2
initiated disciplinary proceedings against appellee for this separate incident. As a result,
appellee was dismissed by the Borough of Carlisle on May 8, 2003.
Appellee appealed his termination to the Commission. Before the start of the
Commission's hearings, appellee submitted a written motion for a public hearing, but the
request was denied following a vote of the Commission. On March 1, 2004, after
conducting six closed hearings, the Commission upheld appellee's dismissal on grounds of
disobedience of orders and conduct unbecoming an officer.
On March 29, 2004, appellee appealed to the trial court, which did not take
additional evidence. Appellee claimed, inter alia, that the Commission had denied him due
process and violated the Act in closing his termination hearings to the public. The trial
court denied appellee's appeal on February 11, 2005. The trial court determined that
appellee's termination was evaluated by the Commission following a series of hearings, as
opposed to meetings or discussions, and that the Sunshine Act does not require hearings
conducted by the Commission to be open to the public, but rather only meetings "held for
the purpose of deliberating agency business or taking of official action." Trial Ct. Slip. Op.
at 18. Furthermore, the trial court stated that 53 P.S. § 461911 of the Borough Code, to
1 This provision provides, in relevant part, that:
If the person suspended, removed or reduced in rank shall demand a hearing
by the commission, the demand shall be made to the commission. Such
person may make written answers to any charges filed against him not later
than the day fixed for hearing. The commission shall grant him a hearing
which shall be held within a period of ten days from the filing of charges in
writing, unless continued by the commission for cause at the request of the
council or the accused. At any such hearing, the person against whom the
charges are made may be present in person and by counsel. The council
may suspend any such person, without pay, pending the determination of the
charges against him, but in the event the commission fails to uphold the
charges, then the person sought to be suspended, removed or demoted shall
be reinstated with full pay for the period during which he was suspended,
removed or demoted, and no charges shall be officially recorded against his
(continued...)
[J-159-2006] - 3
which the Borough of Carlisle is subject, is silent as to whether hearings before a civil
service commission should be open or closed to the public. Because appellee alleged
misconduct by other members of the Department and the case involved "the innerworkings
of the Department," the trial court held that it was not an abuse of the Commission's
discretion to hold closed hearings. Trial Ct. Slip. Op. at 18.
On appeal, a panel of the Commonwealth Court reversed in a published opinion.
Day v. Civil Service Comm'n of the Borough of Carlisle, 887 A.2d 793 (Pa. Cmwlth. 2005).
The court agreed with appellee that he was denied due process "to the extent that the
denial was a violation of the Sunshine Act" when the Commission rejected his request for
an open hearing. Id. at 795. The panel first noted that Section 704 of the Act, 65 Pa.C.S. §
704,2 provides for open agency meetings. The panel then cited Section 708 of the Act, 65
Pa.C.S. § 708, as permitting an agency to discuss termination of employment in an
executive session, but also as allowing an individual who may be adversely affected by the
discussion to make a written request for a public hearing.3 The panel interpreted the right
(...continued)
record. A stenographic record of all testimony taken at such hearings shall
be filed with, and preserved by, the commission, which record shall be sealed
and not be available for public inspection in the event the charges are
dismissed.
53 P.S. § 46191 (footnote omitted).
2 Section 704 provides the following: "Official action and deliberations by a quorum of the
members of an agency shall take place at a meeting open to the public unless closed under
section 707 (relating to exceptions to open meetings), 708 (relating to executive sessions)
or 712 (relating to General Assembly meetings covered)." 65 Pa.C.S. § 704.
3 Section 708 provides, in part, that:
(a) Purpose.--An agency may hold an executive session for one or more of
the following reasons:
(continued...)
[J-159-2006] - 4
of a potentially adversely affected individual under Section 708 as mandating a public
hearing any time the right is exercised, and that the Commission's denial of appellee's
request was in violation of Section 704. Having found a violation of the Act, the panel
invalidated the Commission's termination decision pursuant to 65 Pa.C.S. § 713,4 vacated
the trial court's orders, and remanded the case to the trial court with a directive to remand
the matter to the Commission with instructions to reconsider appellee's appeal at an open
meeting.5 Because the Commonwealth Court granted appellee relief on his Sunshine Act
claim, it did not address his remaining five claims.s Neither the Commonwealth Court nor
(...continued)
(1) To discuss any matter involving the employment, appointment,
termination of employment, terms and conditions of employment, evaluation
of performance, promotion or disciplining of any specific prospective public
officer or employee or current public officer or employee employed or
appointed by the agency, or former public officer or employee, provided,
however, that the individual employees or appointees whose rights could be
adversely affected may request, in writing, that the matter or matters be
discussed at an open meeting. The agency's decision to discuss such
matters in executive session shall not serve to adversely affect the due
process rights granted by law, including those granted by Title 2 (relating to
administrative law and procedure). The provisions of this paragraph shall not
apply to any meeting involving the appointment or selection of any person to
fill a vacancy in any elected office.
65 Pa.C.S. § 708(a)(1).
4 "Should the court determine that the meeting did not meet the requirements of this
chapter, it may in its discretion find that any or all official action taken at the meeting shall
be invalid." 65 Pa.C.S. § 713.
5 On remand, the Commonwealth Court also noted that the Commission should establish
whether appellee's union is the collective bargaining unit for Borough of Carlisle police
officers or "merely an informal association of those officers." Day, 887 A.2d at 796.
6 Appellee had also asked the Commonwealth Court to determine: 1) whether the
statements he made regarding the police detective and the police lieutenant were protected
(continued...)
[J-159-2006] - 5
the trial court addressed whether appellee had pursued his Sunshine Act claim in a timely
fashion.
Thereafter, appellants filed a petition for allowance of appeal with this Court. We
granted review to address the following questions:
Whether Section 713 of the Sunshine Act, 65 Pa.C.S. § 713, requires that
challenges to the closed nature of a hearing be brought within thirty days of
the decision that the hearing will not be open to the public?
Whether the Sunshine Act, 65 Pa.C.S. §§ 701-716, requires that a police
officer's appeal of his termination before the Civil Service Commission be
held at an open meeting upon the request of the officers?
Day v. Civil Service Comm'n of Carlisle, 901 A.2d 500 (Pa. 2006) (per curiam).
We acknowledge that "[a]ppellate 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." Lewis v. Civil Service Comm'n of
Philadelphia, 542 A.2d 519, 522 (Pa. 1988) (citing 2 Pa.C.S. § 754(b) and Tegzes v.
Township of Bristol, 472 A.2d 1386 (Pa. 1984)). However, in this instance, we review the
threshold question of the timeliness of appellee's Sunshine Act appeal to the trial court, as
opposed to a decision of the Commission. The timeliness of an appeal is a question of law.
See Commonwealth v. Smith, 818 A.2d 494, 498 (Pa. 2003). Accordingly, our scope of
(...continued)
speech; 2) whether his right to free association was violated where he was disciplined for
statements made following a union meeting; 3) whether the Commission violated his rights
in the manner it admitted and considered evidence against him; 4) whether he was
prejudiced by the admission of 18 pages of documents," despite all parties agreeing that
they were not properly before the Commission; and 5) whether the Commission erred in
allowing the charges against him to be expanded at the hearing? Day, 887 A.2d at 794-95.
[J-159-2006] - 6
review is plenary and our standard of review is de novo. Commonwealth v. Jones, 912
A.2d 815, 816 n.1 (Pa. 2006).
Appellants claim that, under Section 713 of the Act, appellee failed to challenge the
Commission's decision to hold closed hearings within the mandated thirty days and,
therefore, the tribunals below, and this Court, lack jurisdiction to pass on the merits of
appellee's Sunshine Act claim. Appellants acknowledge that appellee filed his Sunshine
Act appeal within thirty days of the Commission's March 1, 2004 final decision to uphold his
termination, but they argue appellee was required to file any Sunshine Act legal challenge
with the trial court within thirty days of the Commission's initial decision on July 14, 2003 to
deny appellee's request for an open hearing. Appellants assert that the July 14, 2003 date
is the proper date from which to measure the timeliness of appellee's appeal because his
procedural objection under the Act was to the closed nature of the proceedings, not to the
later substantive decision to uphold his termination. Furthermore, appellants note that
appellee's repeated requests for open hearings are of no consequence to the determination
of the timeliness of his appeal and that appellee submitted other filings to the trial court
while the Commission's proceedings were ongoing. Appellants emphasize that it is
beneficial to require a party to file a Sunshine Act contest within thirty days of a
Commission vote to hold closed hearings because it allows violations of the Act to be
expeditiously remedied. Finally, appellants argue that a timely-filed petition for review of
the Commission's merits decision cannot satisfy the time limitations imposed for Sunshine
Act challenges.
Appellee counters that his time to dispute the closed nature of the proceedings
under the Act did not begin to run until after the Commission rendered its merits decision to
The Pennsylvania League of Cities and Municipalities filed a brief for amicus curiae
largely echoing appellants' arguments.
[J-159-2006] - 7
uphold his termination. Appellee argues that it would be "absurd" to bring a challenge prior
to the Commission's ultimate decision, particularly when the Commission offered no reason
for its decision to hold closed proceedings. Appellee asserts that if he were required to
appeal every objection on which he was overruled, the proceedings would become
unnecessarily protracted. If appellee were a member of the public wishing to challenge
closed Commission proceedings, he admits that he would be required to challenge the
decision to close the proceedings within thirty days, but he argues that the time-frame
should be found to be different for a person who is the subject of the matter before the
Commission. Since he filed his appeal and Sunshine Act challenge within thirty days from
the date that the Commission rendered its merits decision, appellee contends that the
Commonwealth Court had jurisdiction to assess the merits of his claim. Appellee lastly
asserts that his petition to the trial court objecting to the closed Commission's proceedings
was a proper form in which to pursue his contest under the Act.
Preliminarily, we note that appellants' Commonwealth Court brief is devoid of the
jurisdictional argument, although appellants did file an application for reconsideration in
which they alleged, apparently for the first time, that appellee's Sunshine Act claim was
untimely. The timeliness of an appeal involves jurisdiction. See Sellers v. Workers'
Compensation Appeal Board (HMT Constr. Servs., Inc.), 713 A.2d 87, 89 (Pa. 1998)
("timeliness of an appeal is a jurisdictional issue"); Robinson v. Commonwealth, Pa. Bd. of
Prob. & Parole, 582 A.2d 857, 860 (Pa. 1990) ("[t]ardy filings go to the jurisdiction of the
tribunal to entertain a cause"). However, appellee does not argue that appellants waived
their claim and, as the question is one of jurisdiction, it is never subject to waiver. See
Commonwealth v. Miller, 888 A.2d 624, 629 n.5 (Pa. 2005) ("The question of a court's
jurisdiction ... is not waivable."). Jurisdictional questions may also be considered sua
sponte. See Commonwealth v. Beasley, 741 A.2d 1258,1261 (Pa. 1999); Commonwealth
v. Yarris, 731 A.2d 581, 587 (Pa. 1999).
[J-159-2006] - 8
The essence of the disagreement between the parties is the proper interpretation of
Section 713 of the Sunshine Act. The object of all statutory interpretation is to "ascertain
and effectuate the intention of the General Assembly." 1 Pa.C.S. § 1921(a). "When the
words of a statute are clear and free from all ambiguity, the letter of it is not to be
disregarded under the pretext of pursuing its spirit." Id. at § 1921(b). Words and phrases
shall be interpreted pursuant to the rules of grammar and in accordance with their common
and approved usage. 1 Pa.C.S. § 1903(a). Given that the language of a statute is the best
indication of the General Assembly's intentions, there is no need to look beyond the plain
meaning of a statute when the words of it are explicit. See, e.g:, Colville v. Allegheny
County Ret. Bd., 926 A.2d 424, 431 (Pa. 2007); McGrorv v. Commonwealth, Dept of
Transp., 915 A.2d 1155,1158 (Pa. 2007); Pa. Dept of Transp., Bureau of Driver Licensing
v. Weaver, 912 A.2d 259, 264 (Pa. 2006).
Section 713 of Sunshine Act provides:
A legal challenge under this chapter shall be filed within 30 days from
the date of a meeting which is open, or within 30 days from the
discovery of any action that occurred at a meeting which was not open
at which this chapter was violated, provided that, in the case of a
meeting which was not open, no legal challenge may be commenced
more than one year from the date of said meeting. The court may enjoin
any challenged action until a judicial determination of the legality of the
meeting at which the action was adopted is reached. Should the court
determine that the meeting did not meet the requirements of this chapter, it
may in its discretion find that any or all official action taken at the meeting
shall be invalid. Should the court determine that the meeting met the
requirements of this chapter, all official action taken at the meeting shall be
fully effective.
[J-159-2006] - 9
65 Pa.C.S. § 713 (emphasis added).8 Except for decisions involving state agencies, the
courts of common pleas have original jurisdiction of all actions originating under the Act. 65
Pa.C.S. § 715. Although this Court has yet to pass upon the time requirements of Section
713, the Commonwealth Court, consistently with the plain language of the Act, has
previously interpreted the provision to require a legal challenge under the Act to be filed
within thirty days of the date that an individual becomes aware of a violation of the Act.
See Belitskus v. Hamlin Township, 764 A.2d 669, 670-71 (Pa. Cmwlth. 2000) (because
"alleged 'improper official activity' [occurred at a meeting] which was not open to the public,
he was obligated to bring the action within thirty days of his discovery of the alleged
improprieties"); Hain v. Bd. of School Dirs. of Reading Sch. Dist., 641 A.2d 661, 662 (Pa.
Cmwlth. 1994) (appeal filed more than thirty days after vote of School Board to ban
videotaping of Board meeting untimely under Sunshine Act when complainant witnessed
vote at issue); Lawrence County v. Brenner, 582 A.2d 79, 82 (Pa. Cmwlth. 1990) ("legal
challenges under The Sunshine Act must be brought within thirty days of the complainant's
discovery of the occurrence of an impropriety at that meeting which is actionable under the
Act").
In this case, appellee submitted a written request to the Commission that it hold
open hearings respecting his termination appeal, but the Commission voted to deny his
request and notified him of its decision on July 14, 2003. Appellee does not dispute that he
was apprised of the Sunshine Act ruling. Over a period of several months, the Commission
held six days of hearings concerning appellee's termination and, at each new hearing,
denied appellee's renewed request for open hearings. Appellee did not file a legal
challenge of the Commission's decision with the trial court at any point during the hearings,
8 On October 15, 1998, the predecessor to Section 713, found at 65 Pa.C.S. § 283, was
repealed.
[J-159-2006] - 10
but rather waited until after the Commission voted to uphold his termination on March 1,
2004, ultimately filing his Sunshine Act challenge to the closed nature of the proceedings
on March 29, 2004, over eight months after the ruling he contested. The appeal appellee
filed regarding his claim under the Act was clearly not made "within 30 days from the
discovery of any action that occurred at a meeting which was not open at which [the
Sunshine Act] was violated." 65 Pa.C.S. § 713 (emphasis added). Therefore, we hold that
appellee's Sunshine Act challenge was untimely according to the plain language of Section
713 and, consequently, the Commonwealth Court, which granted relief on the claim, did not
have jurisdiction to review its merits. See Sellers, 713 A.2d at 89; Robinson, 582 A.2d at
860.
Although appellee would have this Court interpret "any action" under Section 713 to
mean the Commission's ultimate termination decision, such a reading would be
unreasonable, if not absurd. The words "any action" clearly encompass a broad array of
actions taken by an agency that could arguably violate the Sunshine Act. The plain
language of the Act clearly supports this reading, as the Act defines an "official action,"
which certainly is subsumed under "any action," as including a "vote taken by any agency
on a motion." 65 Pa.C.S. § 703. Here, appellee's challenge under the Sunshine Act stems
from the Commission's July 14, 2003 vote to deny his motion to hold open termination
hearings. The Commission's decision on March 1, 2004 to uphold his termination was not
the alleged primary violation of the Sunshine Act, making July 14, 2003 the proper date
from which to measure the timeliness of appellee's legal challenge under the Act.
Finally, this Court rejects appellee's argument that it is absurd to read Section 713 to
require a legal challenge under the Act to be filed before Commission hearings are
complete. Sunshine Act challenges are process-oriented, and indicate interests broader in
scope than the interests of an individual party. Accordingly, it is more efficient to require a
challenge to be filed within thirty days of an agency's initial decision to close proceedings,
[J-159-2006] - 11
when the Sunshine Act gives courts power to invalidate agency proceedings that violate the
Act. See 65 Pa.C.S. § 713. This construct is particularly salutary in cases such as this
one, where the Commission's proceedings occurred over several months and the
Commonwealth Court ultimately directed the Commission to hold a new set of hearings.
Appellee's further concern that today's decision will result in protracted litigation and
piecemeal appeals is unfounded, as the Sunshine Act is limited in scope, addressing only
in what circumstances agency hearings must be held open to the public. Moreover,
because our holding is commanded by the statute, appellee's policy complaint is more
properly directed to the General Assembly.
For the foregoing reasons, we reverse the decision of the Commonwealth Court that
the Commission's closed hearings violated appellee's due process rights under the
Sunshine Act. We are aware, however, that appellee raised other challenges, which the
Commonwealth Court did not reach. We therefore remand this matter to the
Commonwealth Court to address appellee's remaining claims.
Former Justice Newman did not participate in the consideration or decision of this
case.
Mr. Chief Justice Cappy, Messrs. Justice Saylor, Eakin and Baer and Madame
Justice Baldwin join the opinion.
JUDGMENT ENTERED
September 26, 2007
Norin K. BIYnn Chie(Clerk
[J-159-2006] - 12
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Thomas L. Day, Jr.,
Appellant
V.
Civil Service Commission of the
Borough of Carlisle and the Borough
of Carlisle
01/-x'34 61,011
No. 550 C.D. 2005
Submitted: March 14, 2008
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE DAN PELLEGRINI, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION
BY SENIOR JUDGE COLINS
FILED: May 19, 2008
This appeal from an order of the Honorable Edgar B. Bayley of the
Court of Common Pleas of Cumberland County (trial court) was previously before
this Court in Day v. Civil Service Commission of the Borough of Carlisle, 887 A.2d
793 (Pa. Cmwlth. 2005), where, having found a violation of the Sunshine Act
(Sunshine Act), 65 Pa.C.S. §§701-716, we invalidated the termination of Thomas
L. Day, Jr. (Day), a police officer in the Carlisle Police Department, by the Civil
Service Commission of the Borough of Carlisle (Commission), and remanded to
the trial court with a directive to remand the matter to the Commission with
instructions to consider Day's appeal at an open meeting. The Commission and
the Borough of Carlisle (Borough) filed a petition for allowance of appeal with our
Supreme Court, which was granted in Day v. Civil Service Commission of Borough
of Carlisle, 587 Pa. 733, 901 A.2d 500 (2006). The Pennsylvania Supreme Court
subsequently reversed this Court's decision, finding that Day's Sunshine Act
challenge was untimely according to the plain language of Section 713, and
remanded the matter to this Court, to address Day's remaining claims. Day v. Civil
Service Commission of Borough of'Carlisle, 593 Pa. 448, 931 A.2d 646 (2007).
Our Supreme Court set forth the factual history underlying this appeal
in its decision of September 26, 2007:
On January 3, 2002, appellee, a corporal with the
Carlisle Police Department with fifteen years of service,
attended a meeting for police supervisors conducted by
Police Chief Stephen L. Margeson. Chief Margeson
discussed the proper procedure to make a complaint
against a fellow police officer and stated that any
complaints made outside the proper channels would be
considered conduct unbecoming an officer. In January of
2003, appellee violated this policy when, in front of two
subordinates and a superior, he accused a detective of
holding a gun to the head of the detective's girlfriend,
falsifying time records, and taking money and drugs from
an investigation. Appellee also accused Chief Margeson
of knowingly covering up these incidents. Chief
Margeson investigated these claims, found them to be
unsubstantiated, and initiated discipline against appellee
on April 24, 2003. Specifically, Chief Margeson told
appellee, both verbally and in a letter, that he was filing
charges against him and that any repetition of such
conduct would result in termination.
Three days later, appellee attended a union
meeting for the Carlisle Police Association. During the
meeting, appellee requested financial support to defend
against the pending discipline, but the request was tabled.
After the meeting, some officers asked appellee the
reasons for his pending discipline. Appellee repeated to
three additional subordinate officers the allegations he
had made earlier. He further accused a police lieutenant
2
of deleting the lieutenant son's name [sic] from a police
database. The conversation was later repeated to Chief
Margeson, who after conducting an internal
investigation, initiated disciplinary proceedings against
appellee for this separate incident. As a result, appellee
was dismissed by the Borough of Carlisle on May 8,
2003.
Appellee appealed his termination to the
Commission. Before the start of the Commission's
hearings, appellee submitted a written motion for a public
hearing, but the request was denied following a vote of
the Commission. On March 1, 2004, after conducting six
closed hearings, the Commission upheld appellee's
dismissal on grounds of disobedience of orders and
conduct unbecoming an officer.
Id, 593 Pa. at 451-2, 931 A.2d at 648.
The trial court, after a thorough discussion of each of the issues raised
by Day in his appeal of the Commission's decision, concluded:
[T]he Civil Service Commission weighed the credibility
of all of the evidence and the testimony of witnesses.
Day, not unexpectedly, disagrees with many of the
findings of the Commission. These findings, however,
are based on relevant evidence that a reasonable mind
might accept as adequate to support a conclusion. The
findings of the Civil Service Commission show that Day,
for whatever reasons, was not satisfied with decisions
that had been made regarding several incidents involving
other members of the Department. That led to his
making allegations of wrongdoing to subordinate officers
in the communications room that had been determined in
other investigations to be baseless. He also made an
allegation of a cover-up by the Borough police chief,
when there had been none.
Three days after being told he would be disciplined for
this conduct, he, nevertheless, repeated to subordinate
3
officers the baseless allegations he made in the
communications room, and additionally implied that a
Lieutenant had wrongfully deleted his son's name from
the Metro system, another baseless allegation. The
substantial evidence supports the findings of the Civil
Service Commission that Day failed to follow orders that
any concerns about other officers in the Department be
made up the chain of command, not to subordinates. The
evidence also supports the finding of the Commission
that Day's actions constituted conduct unbecoming an
officer.
(Opinion of the trial court, February 11, 2005, pp. 26-27.)
On remand, Day argues, inter alia, numerous violations of his
constitutional rights, under both the federal and Pennsylvania Constitutions, by
both the Borough and the Commission.' On May 4, 2004, while his appeal to this
Court was pending, Day also commenced a lawsuit in the United States District
Court for the Middle District of Pennsylvania, in which he raised similar issues;
Day alleged that he was unlawfully terminated from employment due to statements
he made about police misconduct and due to his union participation, in violation of
the United States Constitution's First Amendment protection of expression and
association, and also asserted violations of his procedural and substantive due
process rights. On July 10, 2006, the Honorable Yvette Kane entered summary
judgment in that action in favor of the Borough and other named parties.2 In a
1 Our 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. Lewis v. Civil Service Commission of Philadelphia, 518 Pa. 170, 542 A.2d
519 (1988).
2 Day v. Borough of Carlisle, No. 1:04-cv-01040YK, 2006 WL 1892711 (M.D. Pa. July
10, 2006).
4
I
lengthy, well-reasoned opinion, Judge Kane addressed, and dismissed each of
Day's claims. We therefore take judicial notice of the federal proceeding, and hold
that the doctrine of collateral estoppel, or issue preclusion, applies,3 and precludes
re-litigation of the federal constitutional issues already decided against Day by
judgment of the U.S. District Court.4 See Roman v. Jury Selection Commission of
Lebanon County, 780 A.2d 805, 809 n.3 (Pa. Cmwlth.), petition for allowance of
appeal denied, 567 Pa. 769, 790 A.2d 1021 (2001).
Day's claims, therefore, that his spoken criticisms were protected free
speech, that he was deprived of freedom of association, and that he was deprived
of both substantive and procedural due process under the United States
Constitution are foreclosed by the doctrine of collateral estoppel.
Because Day argues, correctly, that the due process rights of
Pennsylvania citizens are broader than those afforded by the U.S. Constitution, we
address Day's arguments that (i) the Borough violated his procedural due process
rights under the Pennsylvania Constitution by creating an appearance of bias when
the Borough's solicitor suggested two names to the Commission to serve as the
Commission's solicitor, and the Commission selected one of them, Joseph Rudolf;
(ii) subsequent to the commencement of the hearings before the Commission, the
Commission's solicitor informed Day of new charges which he was required to
3 In Pennsylvania, collateral estoppel applies when: (1) an issue of law or fact decided in
a prior action is identical to one presented in a later action; (2) the prior action resulted in a final
judgment on the merits; (3) the party against whom collateral estoppel is asserted was a party to
the prior action or is in privity with a party to the prior action; and (4) the party against whom
collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior
action. Irizarry v. Office of General Counsel, 934 A.2d 143 (Pa. Cmwlth. 2007).
4 Judge Kane's order has been appealed to the Third Circuit Court of Appeals. However,
unless or until it is reversed on appeal, it is a final judgment purposes of collateral estoppel.
Yonkers v. Donora Borough, 702 A.2d 618 (Pa. Cmwlth. 1997). A pending appeal does not
destroy the finality of judgment for purposes of collateral estoppel. Id.
5
defend, and (iii) ex parte communications were conducted between the Borough
and the Commission and its solicitor. Day relies upon Lyness v. State Board of
Medicine, 529 Pa. 535, 605 A.2d 1204 (1992), in arguing that prosecutorial and
adjudicatooy functions were commingled. In Lyness, our Supreme Court stated:
In determining what process is due Pennsylvania citizens,
this Court has established a clear path when it comes to
commingling prosecutorial and adjudicatory functions.
There is a strong notion under Pennsylvania law that
even an appearance of bias and partiality must be viewed
with deep skepticism, in a system which guarantees due
process to each citizen.
Id., 529 Pa. at 542, 605 A.2d at 1207 (emphasis deleted).
Judge Kane correctly noted that Lyness was inapposite, given the fact that Day's
case did not involve a situation wherein charges were initiated by an individual or
multi-member entity that later acted as the ultimate fact finder against the charged
individual. Judge Kane further opined:
In the case sub judice, Defendants proffer evidence that
Attorney Rudolf was selected by the chair of the Civil
Service Commission, Ben Francavilla, because of
Rudolf 's expertise with civil service rules and
regulations... [T]he record does not support the specter
of bias that Plaintiff claims existed within the
Commission's choice of advisory counsel or Attorney
Rudolf s role during the hearings. Plaintiff points to no
evidence, beyond bald allegations, demonstrating bias of
the Commission or Attorney Rudolf, or improper ex
parte communications concerning the substance of the
case. Further, the transcript of the civil service hearing,
on record does not support a finding that Attorney
Rudolf's participation in the hearing resulted in an unfair
or impartial proceeding, or that Attorney Rudolf guided
the Commission in reaching their decision. The Plaintiff
adduces no evidence to rebut the presumption of
impartiality given to the Commission members in their
adjudication of Plaintiff s case.
6
Day v. Borough of Carlisle, at pp. 33-35. (Footnote and citations omitted.)
Sub judice, the trial court determined that the assignment of independent counsel to
the Commission complied with the law and was not violative of Day's due process
rights. In Stone and Edwards Insurance Agency, Inc. v. Commonwealth
Department of Insurance, 538 Pa. 276, 648 A.2d 304 (1994), our Supreme Court
clarified that:
[T]he form of impermissible "appearance" of bias and
partiality proscribed in Lyness must clearly be one that
arises from an actual environment of commingled
functions. Given the nature and constraints of our
various governmental bodies, the question of due process
reasonably involves an inquiry into the nature of the
process actually provided.
Id., 538 Pa. at 281-282, 648 A.2d at 307.
Upon review of the extensive record, we can find no evidence whatsoever of a
commingling of functions sub judice, and not even an appearance of impropriety.
The record reveals that no ex parte communications occurred. As to Day's claim
that he did not receive adequate due process notice, we note with approval the trial
court's detailed analysis of the manner in which notification was provided; the
record is undisputed that Day's right to notice of the charges against him was
adequately protected:
The May 9, 2003 notice of dismissal made reference to
Borough Council concurring in the charges outlined in
the letter to Day from Chief Margeson dated May 6,
2003. That letter specifically sets forth not only the
alleged facts of the incident after the meeting of the
Carlisle Police Association on April 27, 2003, but also
that Margeson advised Day in writing on April 24, 2003,
that he was going to seek disciplinary action against him
based on a letter written to Day that date. That April 241h
letter sets forth the specific facts as to the incident in the
7
latter part of January, 2003 in the communications room
of the police department. When Day was given that letter
on April 24"', Margeson also told him he was going to
seek discipline based on the communications room
incident as set forth in the letter. Accordingly, Day
received written notice of the charges relating to the
incident in the communications room that was presented
to Borough Council. The notice was constitutionally
sufficient, and the Civil Service Commission properly
reviewed those charges in Day's appeal from his
dismissal by Borough Council.
(Opinion of the trial court, pps. 11-12.)
Similarly, it is proper that we consider Day's argument that his
inalienable right, under Article 1, Section 7 of Pennsylvania Constitution, to
discuss his opinions has been impaired. The Pennsylvania Constitution recognizes
broader free expression rights than does the federal constitution. Pap's A.M. v.
City of Erie, 571 Pa. 375, 812 A.2d 591 (2002). Notwithstanding this broader
penumbra, Pennsylvania law allows an employer to implement a chain of
command policy to regulate the time, manner, and place of expression. See Bala v.
Unemployment Compensation Board of Review, 400 A.2d 1359 (Pa. Cmwlth.
1979). We must remember that speech can also constitute conduct, and an
employee's conduct, in the workplace, may be regulated by the employer.
Fuller v. Borough of Waynesburg, 503 A.2d 1031 (Pa. Cmwlth.
1986), involved a factual scenario similar to the instant matter. In Fuller,
Lieutenant Clark, of the Waynesburg Police Department, overheard a conversation
between Fuller, another police officer, and a non-member of the police force.
Lieutenant Clark found that the conversation involved statements critical of the
police department and in direct contravention of departmental regulations, which
stated:
8
I
No member of the department shall criticize the
department or any of its members to any person or
agency.
Fuller was ordered to submit a written memorandum detailing the part of the
conversation in which departmental matters were discussed. Fuller began to write
the memorandum, but subsequently changed his mind and tore up the
memorandum in front of Lieutenant Clark, who again ordered compliance, and
again Fuller refused. Disciplinary proceedings were commenced, resulting in
Fuller's dismissal. This dismissal was upheld by the Waynesburg Civil Service
Commission and the Court of Common Pleas of Greene County, following a de
novo hearing.
In writing for a unanimous panel, Judge Doyle held that the police
department's regulation, which prohibited criticism of the department made to the
public rather than to the appropriate supervisory personnel, was not
constitutionally overbroad. Id., at 1033, n.4.
The chain of command policy regulating procedures to follow when
making complaints of improper conduct by fellow officers and superiors is
necessary for the orderly and efficient operation of paramilitary organizations,
such as the Carlisle Police Department.
Day also maintains that because his termination is based upon
statements made to union members immediately after a union meeting, he was
terminated due to union activities in violation of his right, under the Pennsylvania
Constitution, to freedom of association. But not a shred of evidence in the record
supports a finding that he was dismissed due to his association with a union, nor
that he was engaged in union activity at the time he made his comments.
9
Day objected to review by the Commission of eighteen pages of
documents that the Borough inadvertently attached to an exhibit submitted at one
of the Commission hearings; these pages were not properly before the
Commissions He argues sub judice that the members of the Commission were
biased as a result, and should have granted his request for a new hearing before a
new Commission. In the course of the hearing, and again in its adjudication, the
Commission clearly confirmed its ability to remain impartial and unbiased. In the
absence of any evidence whatsoever that Day was prejudiced by this information,
we find that there was no bias. City of Harrisburg v. Pickles, 492 A.2d 90 (Pa.
Cmwlth. 1985).
The remainder of Day's arguments are, in essence, a request that we
substitute our evaluations for those of the Commission. A thorough review of the
5 The trial court stated:
Seven of the pages of the subject documents contain
internal memoranda of the Carlisle Police Department regarding its
investigation of Detective Smith. Three pages contain material
involving the internal investigation of the Department regarding
the deletion of the name of Matthew Walters from a dispatch entry
after a traffic stop by Patrolman Brewbaker. Two pages, with
accompanying dispatch pages, involved an incident on December
9, 2002, reported by Lieutenant Walters to Chief Margeson.
Lieutenant Walters set forth that Corporal Day investigated a
complaint from a resident on West South Street regarding vehicle
tracks in her yard... Generally, the information pertaining to the
investigations of Detective Smith and the deletion of the name of
Matthew Walters from the dispatch entry was properly admitted
into evidence through other means at other times during the
hearings before the Civil Service Commission. The circumstances
in which Day reported the conduct of Sergeant Guido and Corporal
Hograth to Lieutenant Walters regarding the incident on December
9, 2002, speak favorably of Day as Walters, his superior,
concluded that Guido and Hograth had used poor judgment in the
matter. Accordingly, we conclude that Day was not prejudiced by
the Commission reviewing the eighteen pages erroneously attached
to Exhibit B-?. He, therefore, is not entitled to relief.
(Opinion of the trial court, pp. 21-22.)
10
record indicates that the Commission's factual findings are supported by
substantial evidence. 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. Section 754 of
the Local Agency Law, 2 Pa. C.S. §754; Moorehead v. Civil Service Commission
of Allegheny County, 769 A.2d 1233 (Pa. Cmwlth. 2001).
Having found the Commission's factual determinations to be
supported by the evidence, and no legal error or violation of constitutional rights,
the order of the Court of Common Pleas of Cumberland County is affirmed.
JAME GARDNER COLINS, Sen?br Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Thornas L. Day, Jr.,
Appellant
V.
Civil Service Commission of the
Borough of Carlisle and the Borough
of Carlisle
: No. 550 C.D. 2005
n12"V Q
AND NOW, this 19"' day of May 2008, the order of the Court of
Common Pleas of Cumberland County is affirmed. The Borough's request for the
award of attorney's fees is denied.
JAMIP GARDNER COLINS, Sener Judge
(-.) F
Certified from the Record
MAY 19 2008
and Order Exit