Opinion

Fabio v. CIVIL SERVICE COMMISSION, ETC.

  • 489 Pa. 309
  • 414 A.2d 82
  • 9 A.L.R. 4th 600
  • 1980 Pa. LEXIS 617
Court
Supreme Court of Pennsylvania
Filed
Apr 30, 1980
Status
Published
Author
Roberts
On the bench
Eagen, Flaherty, Larsen, Manderino, Nix, O'Brien, Roberts
Cited by
57 cases
Authority
More cited than 7.4%

applying strict scrutiny to hold that police department's investigation of a police officer's off-duty sexual relations with his wife’s eighteen-year-old sister did not violate the officer’s privacy rights

How later courts described this case

  • applying strict scrutiny to hold that police department's investigation of a police officer's off-duty sexual relations with his wife’s eighteen-year-old sister did not violate the officer’s privacy rights
  • upholding dismissal of police officer for violating Article I, Section 1.75 of the Philadelphia Police Department Manual
  • law which appears vague on its face may withstand a constitutional challenge if it has been narrowed by judicial interpretation, custom and usage
  • the constitutional right to privacy protects from governmental interference activities relating to marriage

Written by the judges who cited it.

The opinion

ROBERTS, Justice,

concurring.

I believe this record establishes sufficient grounds to justify appellant’s dismissal from the Philadelphia Police Department, and accordingly concur in the result of the majority.

Appellant first challenges the constitutionality of section 1.75 on vagueness grounds. The vagueness doctrine requires notice to the actor that certain conduct is proscribed and bars overbroad application. See Note, the Void-for-Vagueness Doctrine, 109 U.Pa.L.Rev. 67 (1960). We have always recognized that when interpreting this type of regulation we give the regulation meaning “by reference to the ‘common sense of the community’ and [the regulation’s] broad protective purposes.” Commonwealth v. Mack, 467 Pa. 613, 618 , 359 A.2d 770, 772 (1976). Here, appellant cannot argue that he believed his conduct would not be deeply objectionable to the community that employed him as a law enforcement officer. Thus, I agree with the majority’s conclusion that this departmental regulation provides sufficient notice to appellant that his conduct would result in his dismissal. See also, Zeber Appeal, 398 Pa. 35 , 156 A.2d 821 (1959); Corle v. City of Oil City, 45 Pa.Cmwlth. 559 , 405 A.2d 1104 (1979).

*327 Nor may appellant contest the regulation on overbreadth grounds. Overbreadth analysis involves consideration of whether the precise language of the statute reaches constitutionally protected conduct. If “the statute contains an ascertainable standard which does not infringe upon protected first amendment rights,” the question of overbreadth “may be finally determined only with reference to the conduct of the person challenging the statute.” Commonwealth v. Mack, 467 Pa. 613, 617 , 359 A.2d 770, 772 (1976). See also, United States v. Mazurie, 419 U.S. 544 , 95 S.Ct. 710 , 42 L.Ed.2d 706 (1975); Commonwealth v. Heinbaugh, 467 Pa. 1 , 354 A.2d 244 (1976). In my view, this regulation does not reach constitutionally protected conduct. Here, appellant’s conduct is at the core of “Conduct Unbecoming an Officer” and thus, appellant cannot claim that the provisions of the duty manual might be improperly applied in other circumstances. Accordingly, I agree that appellant was properly discharged from the Police Department six years ago in 1973.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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