Johnson v. Lansdale Borough

105 A.3d 807, 2014 WL 6663060, 2014 Pa. Commw. LEXIS 543
CourtCommonwealth Court of Pennsylvania
DecidedNovember 19, 2014
StatusPublished
Cited by3 cases

This text of 105 A.3d 807 (Johnson v. Lansdale Borough) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Lansdale Borough, 105 A.3d 807, 2014 WL 6663060, 2014 Pa. Commw. LEXIS 543 (Pa. Ct. App. 2014).

Opinions

OPINION BY

Judge LEAVITT.

Lansdale Borough and the Lansdale Borough Civil Service Commission (collectively, Borough) appeal an order of the Court of Common Pleas of Montgomery County (trial court) that modified the Commission’s discipline of George Johnson, a Borough police officer. Specifically, the trial court reversed the Borough’s termination of Johnson’s employment and ordered that he be reinstated after a 30-day suspension. In doing so, the trial court held, inter alia, the Commission’s factual finding that Johnson made a false statement to a district justice and to a district attorney was not supported by substantial evidence. The trial court also held that Johnson’s conduct warranted a suspension, not a termination and, thus, modified the Commission’s discipline. Concluding that the trial court did not err or abuse its discretion in modifying the Borough’s discipline, we affirm.

Factual and Procedural Background

Johnson, a Borough police officer since 1997, did not appear at a preliminary hearing on May 18, 2010, before the district justice in a DUI case in which Johnson had been the arresting officer. Because Johnson was not scheduled to work the day of the hearing, the police department could not give the prosecutor information that might have allowed the district justice to reschedule the preliminary hearing. In the absence of evidence, the district justice dismissed the DUI charges against the defendant.

A criminal complaint dismissed at a preliminary hearing may be reinstituted so long as the statute of limitations has not run. Commonwealth v. Thorpe, 549 Pa. 343, 701 A.2d 488, 489 (1997). However, the decision to reinstitute charges must be made by the prosecutor. PA. R.CRIM.P. 544, comment.1 When Johnson returned [809]*809to work on May 19, 2010, he realized he had missed the preliminary hearing and began the process necessary to have the DUI charges reinstated.

On May 26, 2010, the Borough Chief of Police, Robert McDyre, called Johnson into his office to discuss his absence from the preliminary hearing. Sergeant Richard Bubnis and Sergeant Alex Kromdyk were also present for the interview, which lasted approximately 15 minutes. The interview was not recorded, and there is some disagreement about what was said there.

Johnson stated that he forgot about the preliminary hearing scheduled on a day when he was off work. Chief McDyre asked Johnson if he would try to reinstate the charges and whether reinstatement was even possible where the officer has forgotten. Johnson stated that he had seen the district justice and told him that he had been sick on the day of the hearing and, in addition, he had begun drafting a letter to the district attorney in an effort to get the charges reinstated. McDyre requested a copy of the draft letter, which Johnson retrieved from his computer; it stated as follows:

I did not attend the Preliminary Hearing because he [sic] was home sick. My department was unaware of this because I was on a scheduled day off and I did not notify them [sic] of my illness until I returned to work. [The district justice] was not notified by me of the situation until several days later and he had already dismissed the case.

R.R. 657a.

McDyre read the letter and stated that it was a lie, in view of Johnson’s statement earlier in the meeting that he had forgotten about the hearing. Johnson replied that he was, in fact, sick and in bed for most of that day. Johnson stated that, in spite of his illness, he would have attended the hearing had he remembered it. Concluding that Johnson had been untruthful to the district justice and in his draft letter to the district attorney, McDyre placed Johnson on administrative leave.

On June 10, 2010, the Borough conducted a Loudermill hearing.2 In attendance [810]*810were the Borough .mayor, Sergeant Bub-nis, Sergeant Kromdyk, as well as Johnson and his union representative, Officer Justin DiBonaventura. The purpose of the hearing, which lasted approximately five minutes, was to give Johnson an opportunity to explain why he should not be fired. Johnson stated that on May 17, 2010, he “called in sick” and did not work because of a sinus migraine headache. R.R. 267a. The next day, which was the day of the preliminary hearing on the DUI case, Johnson was not scheduled to work.3 Johnson left home to do an errand in the morning, but began to feel ill. He returned home, took medicine and went to bed. Concluding that Johnson had lied about his reasons for not appearing at the hearing, Chief McDyre recommended that Johnson’s employment be terminated.

On June 18, 2010, the Borough issued the following statement of charges to Johnson:

1. You failed to appear as required at a preliminary hearing at Lansdale District Court on Tuesday May 18, 2010, resulting in the dismissal of that case. You were properly subpoenaed by the Lans-dale District Court to appear and testify at this criminal proceeding. You did.not notify anyone of any inability on your part to appear for this hearing. Further, this is [the] fourth occurrence in. which you have failed to appear at court when subpoenaed to do so. This act constitutes a violation of the Code of the Borough of Lansdale, Civil Service Commission, Chapter Seven, Section 7.Á., Subsections (l)(b) and (d)[4] as well as Procedural Directive # 6, Code of Conduct, Section I, Subsections B(2) and (4).[5]
2. When you were questioned as part of an official investigation regarding the missed court hearing, you were ordered to answer honestly and completely. During the interview it was revealed [811]*811that you were untruthful as to the reason you failed to attend the hearing. This act constitutes a violation of the Code of the Borough of Lansdale, Chapter Seven, Section 7.A., Subsections (1)(b) and (d) and Procedural Directive # 6, Code of Conduct, Section I, Subsection B(4).
3. You made false statements to the Court as to the reason you had missed the court proceeding. This act constitutes a violation of the Code of the Borough of Lansdale, Chapter Seven, Section 7.A., Subsections (1)(b) and (d) and Procedural Directive # 6, Code of Conduct, Section I, Subsection B(4).
4. You prepared a document to the District Attorney’s office in which you falsely stated the reason you had missed a preliminary hearing and you requested “re-arrest” permission based on the false statement. This act constitutes a violation of the Code of the Borough of Lansdale, Chapter Seven, Section 7.A., Subsections (1)(b) and (d) and Procedural Directive # 6, Code of Conduct, Section I, Subsection B(4).

R.R. 635a-36a. On June 23, 2010, the Borough Council voted to terminate Johnson’s employment. Johnson appealed this determination to the Commission, which conducted hearings over the course of four days.

Chief McDyre testified that, based upon his interview of Johnson at the May 26, 2010, meeting and Johnson’s statements at the Loudermill hearing, he believed Johnson should be discharged. .

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Related

G. Johnson v. Lansdale Borough and Lansdale Borough Civil Service Commission
180 A.3d 791 (Commonwealth Court of Pennsylvania, 2018)
Johnson, G. v. Lansdale Boro, Aplts.
146 A.3d 696 (Supreme Court of Pennsylvania, 2016)

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Bluebook (online)
105 A.3d 807, 2014 WL 6663060, 2014 Pa. Commw. LEXIS 543, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-lansdale-borough-pacommwct-2014.