# Bell Appeal > Supreme Court of Pennsylvania · July 2, 1959 · 396 Pa. 592 URL: https://www.frixlaw.com/law-library/cases/9703691 ## Case - **Full name:** Bell Appeal - **Court:** Supreme Court of Pennsylvania - **Decided:** July 2, 1959 - **Citations:** 396 Pa. 592; 152 A.2d 731; 1959 Pa. LEXIS 585 - **Precedential status:** Published - **Opinion:** Concurring in part by Musmanno - **Judges:** McBbide, Jones, Bell, Musmanno, Cohen, McBride - **Cited by:** 87 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9703691 ## Opinion text Concurring and Dissenting Opinion by Mr. Justice Musmanno : I concur in the opinion of the Court on the question of appellate review on certiorari. I dissent, however, from the Majority’s conclusions on the merits of the case. I believe the facts do not warrant the conclusion reached by the County Court. In any event it is simply inescapable that the penalties imposed against the three policemen in this case are unreasonable to the point of unfairness and cruelty. Here are three men who have devoted their respective lives to the profession of police officers; they are trained for this type of work and none other. Now, because of a mistake in judgment, assuming that the County Court was correct in its conclusions, (which of course I do not concede), they are dismissed, dishonored and deprived of their livelihood. It is a contemplation which is harrowing and should disturb anyone devoted to the cause of justice and fairness, as we know justice and fairness in America. In the first place, the County Court of Allegheny County should never have approved the findings of the Trial Board and the Civil Service Commission. In hearing the case, the County Court completely failed to perform its duty.- It was required to hear evidence and consider the case de novo. De novo assumes that for the purpose of the hearing there has been no previous proceeding. When a Court takes up a cause de novo, it has the responsibility of hearing evidence, AVeighing *616 it, and reaching conclusions as if this had been the first time the involved litigants had ever appeared before a tribunal. 1 The County Court did not seem to understand this. It stated: “In the appeals under consideration this Court has limited its decision to decide whether or not there was substantial evidence to sustain the action of the Civil Service Commission and the administration in dismissing these police officers, even though the Court mag have arrived at a different conclusion if it were making an independent inquiry.” 2 This is a broad hint that if the County Court had been sitting as a Trial Board, it would not have reached the conclusions it announced. But the County Court was sitting as a Trial Court to determine the facts. It Avas doing, or should have been doing, what it said it did not have the power to do. It did have the power to make an independent inquiry, and, in fact, Avent through the motions of an independent inquiry, but then when it came to a formal adjudication, it put on self-forged chains, and contented itself with an affirmance of what went on before. This misconception of its powers, or at least its failure to exercise them, entitles the policemen to a neAv hearing, and I Avould, therefore, reverse the action of the County Court and send the cause back for a rehearing. In seeking to justify its action the County Court cited the case of Thomas v. Connell, 264 Pa. 242 , where this Court said: “What constitutes ample (just) cause for removal must necessarily be largely a matter of discretion on the part of the head of the department. To be sufficient, however, the cause should be personal to the employee and such as to render him unfit for *617 the position he occupies, thus making his dismissal justifiable and for the good of the service.” But in that case the discharged official had been found guilty of insubordination and of using profane and contemptuous language toward the Mayor of Scranton, his superior. Our Court properly said: “Insubordination and disrespect toward a superior, whose duty it is to see that the work of his department is carried on in a proper manner, are matters which, if permitted to pass unpunished, tend to demoralize the public service, and lead to general inefficiency and disloyalty among employees.” There was nothing like that in the case of the three men involved in these proceedings. The record shows them to have been good police officers; they have been respectful to their superiors; they have been efficient and loyal. William Killeen became a policeman on January 19, 1940 (not 1950 as incorrectly stated by the County Court.) Joseph Bell got his badge on January 7, 1929. George E. Tarr has been on the police force since December 19, 1941. Thus, these officers rendered faithful service for 17y2 years, 28 years, and 16 years, respectively. In all those years they have never been insubordinate, they have never flinched from danger, they have never failed to measure up to what is expected of a good police officer. In all that time they have upheld law and order; they have bestowed protection on the weak, the aged, and the helpless; they have given assistance to everyone who turned to them for help; they have never brought shame or dishonor to the uniform they wore. These three men have upheld the dignity and the respect which goes with an officer of the law. A policeman is a soldier of peace, he is the symbol of an orderly community. When the tranquillity in that community is disturbed, when violence threatens, when accidents *618 spill their cargoes of pain and confusion, it is the policeman who works and battles to bring back normalcy and harmony, it is the policeman who summons medical care and mechanical aid, it is the policeman who restores confidence and well-being to the distraught neighborhood. These three men have been worthy of the tributes which society happily bestows on guardians of the peace. Up until July 3, 1957, their records were unblemished, their names unstained, their reputations as law-abiding and home-loving citizens excellent. On July 3, 1957, they erred, that is if we accept at face value the findings of the Trial Board, the affirmation of the Civil Service Commission, and the unsatisfactory review by the County Court. But, assuming that, in the performance of their duty, they missed the chalked line, did they go so far that their marginal misstep should condemn them to decapitation? Was it that kind of a blunder which warrants taking away their uniform which they have worn so long without a single brass button tarnished? My answer is an emphatic negative. Another deplorable sequel to the penalty inflicted in this case, if unrectified, is that it will extend beyond punishing the men themselves. The punishment will work a demoralizing effect on the whole police force. Every policeman will feel that a sword of Damocles hangs over his head as he walks his beat and as he responds to a call to action. A policeman’s weapons are not limited to revolver and mace. He must also carry the side arms of daring, initiative, and aggressive resourcefulness if he is to successfully fight bandits, burglars, thieves, and other malfeasors of the underworld who are formidably equipped and trained to wage their ungodly war against society. If the law rivets to the policeman’s ankle an iron ball of threatening chas *619 tisement always ready to trip Mm in the event he makes an unforeseeable error, he is to that extent disarmed in his battle against the criminal. If he is held back in that fashion his zeal is bound to suffer, his ardor can only diminish — all to the advantage of the .violent evildoers ever ready to pounce on a defenceless society. Of course, a policeman is amenable to the law like everybody else if he transgresses the legal code. But no one has charged that these men committed a crimiinal offense or that they performed any deed involving moral turpitude. Taking the evidence in its worst possible light they were negligent and possibly indifferent to the necessity of getting the right name of a man they arrested and who later was released on a ten dollars forfeit. * Assuming that the findings of the Trial Board were substantiated by evidence, a reprimand or. a short suspension would not have been out of order. But to drive the appellants out of the only profession they know, take away their unsullied badges, and visit calamity on their families is a punishment which cannot, in justice, be supported by facts or law. Of what use is it to preach vigilance, virtue and rectitude if, with one little slip, a man’s lifelong record of vigilance, virtue and rectitude is ignored and. he is pushed over the cliff of ignominy and disaster? We are not a vengeful people. We are dedicated to goodness, right, and probity of conduct, but it is written in the pages of man that to err is human; and, when the error is not motivated by an evil spirit, we stand ready to give the erring mortal another chance. That is America, that is civilization, that is Christendom. If tolerance, *620 moderation, charity, humanity, and mercy are part of the American way of life, and they undoubtedly are, this is the time and the place to exercise those attributes. If the County Court had exercised the authority it possesses, it would, at the very least, in accordance with the law, have reduced the punishment imposed by the Trial Board. If this Court had exercised the authority which it indubitably possesses, it would have struck down this penalty which is completely out of accord with the law as written in the books and in the hearts of men. But, since the County Court and this Court have failed to discharge what I regard as their obvious responsibility, I trust that the City of Pittsburgh will reinstate Officers William Killeen, Joseph Bell and George E. Tarr to their places. For whatever error they may have committed, they have long since made retribution in salary lost and anguish suffered. William Schwenk Gilbert said: “The policeman’s lot is not a happy one.” But there is no reason why that unhappiness should be added to by the forces of the very law, to uphold which the policeman fears no storm or darkness, flinches from no danger or menace, fights against visible and invisible foe, and stands ready, at any time, if necessary, to give his life. The cumulative dangers and hardships which these three men of the law have sustained over a collective incumbency of 61 years entitle them to a showing of kindness which they have undoubtedly often displayed toward others, in entire keeping with the majesty of the law and the dignity of man, which, all combined, make America the land of true and understanding justice. American Fruit Growers v. Runzo, 95 F. Supp. 842 . Italics throughout, mine... Officer Killeen perhaps went further than duty required when he struck the motorist who approached him for guidance and assistance. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9703691. Public record. Not legal advice.