                            [J-41-2016][M.O. Baer, J.]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                                MIDDLE DISTRICT


GEORGE JOHNSON,                               :   No. 62 MAP 2015
                                              :
                  Appellee                    :   Appeal from the Order of the
                                              :   Commonwealth Court at No. 134 CD
             v.                               :   2013 dated 11/19/14 affirming the order
                                              :   of Montgomery County Court of
                                              :   Common Pleas, Civil Division, at No.
LANSDALE BOROUGH AND LANSDALE                 :   2010-34399 dated 1/3/13
BOROUGH CIVIL SERVICE                         :
COMMISSION,                                   :
                                              :
                  Appellants                  :   ARGUED: April 5, 2016




                               CONCURRING OPINION


CHIEF JUSTICE SAYLOR                                    DECIDED: September 28, 2016

      I join the majority opinion, although I am somewhat circumspect about resort to

the in pari materia principle of statutory construction. Cf. Oliver v. City of Pittsburgh,

608 Pa. 386, 394–95, 11 A.3d 960, 965–66 (2011) (expressing similar circumspection

about the application of such principle and declining to extend an in pari materia

construction to particular provisions of the Workers' Compensation Act and the Heart

and Lung Act).

      Additionally, from my point of view, judicial review of a determination of a local

civil service commission should account for the commission’s own charge in the first

instance. In this regard, the governing ordinance of Lansdale Borough, the application

of which has not been challenged in this case, provides, in relevant part:
      [T]he Commission’s standard of review shall be to determine whether
      sufficient evidence has been presented to support the statutory reason for
      the disciplinary action. If the Commission finds that sufficient evidence
      has been introduced to support the change, the Commission shall not
      modify the penalty imposed by the Borough Council or the Mayor unless it
      finds that the penalty imposed was arbitrary, discriminatory or an abuse of
      the Borough Council’s or Mayor’s discretion.           In considering the
      appropriateness of the discipline, the Commission shall not substitute its
      judgment for that of the Borough Council or Mayor.
BOROUGH OF LANSDALE CODE §7-7(D)(3).

      Particularly where a statutory appeals court does not entertain additional

evidence, it seems to me that the court’s primary task will be to determine whether the

local commission adhered to its own deferential review mandate in the first instance.1

This, of course, is wholly consistent with the facet of the review, under the Local Agency

Law, concerning whether an adjudication is in accordance with law. 2 Pa.C.S. §754(b).




1
  I also believe that “de novo” review, in this setting, should also account for the core
review standard governing the adjudication of the matter in the first instance. The fact
that a statutory appeals court, upon entertaining additional evidence, may be
empowered to effectively step into the shoes of the local commission does not, in my
view, relieve it from the constraints governing the commission’s own decision-making.
The alternative, it seems to me, would result in the entry of an essentially standardless
decision, which “is not an appropriate exercise in decision making for a judicial body.”
In re Brown, 625 N.W.2d 744, 744 (Mich. 2000) (per curiam).

Parenthetically, it should be noted, by way of contrast to the Lansdale ordinance, the
Pennsylvania General Assembly has invested discretion in the State Civil Service
Commission to effectuate reinstatements.         See 71 P.S. §741.952(c) (“Where
appropriate, the commission may order reinstatement, with the payment of so much of
the salary or wages lost, including employee benefits, as the commission may in its
discretion award.” (emphasis added)). It should also be noted, however, that even this
conferral of authority is not boundless. See, e.g., Pa. Game Comm’n v. SCSC (Toth),
561 Pa. 19, 30-31, 747 A.2d 887, 893-94 (2000) (overturning a reinstatement, by the
Civil Service Commission, of a Game Commission employee who had used his position
to intentionally alter payroll system files).


                             [J-41-2016][M.O. – Baer, J.] - 2
