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Appeal fails; court affirms judge’s order

November 12, 2011

Brian Andrekovich

PUNXSUTAWNEY — Another appeal against giving former Punxsutawney Borough Police Officer Brian Andrekovich his job back has been denied, this time by the Commonwealth Court of Pennsylvania.

In an order dated Thursday, Nov. 10, the Commonwealth Court said it affirmed an order by the Common Pleas Court of Jefferson County, in which Judge John Foradora ordered Punxsutawney Borough Council to rehire Andrekovich, whom council fired Nov. 3, 2009, following the death of Stephen Obbish, 48, who died in a police cruiser Aug. 15, 2009, while in Andrekovich’s custody.

In a July 2010 order, the Punxsutawney Civil Service Commission ordered that council rehire Andrekovich. Aug. 9, 2010, council voted 5-1 to appeal the commission’s order, and this past February, Foradora denied council’s appeal.

In his opinion, Foradora wrote, “The court, having reviewed the entire record, including the video surveillance DVD, the hearing transcripts, and the exhibits produced at that hearing, agrees that the evidence was insufficient to sustain the charges identified by council in its statement of charges and as further defined in his termination letter,” and that “the court agrees that council terminated Andrekovich when there was not sufficient evidence to sustain the charges against him.”
In March, council said it would appeal Foradora’s order, because, “One of the terms of the proposed settlement agreement with the Obbish family reads as follows: ‘The borough agrees to continue to pursue in good faith the civil service appeal arising from the termination of Detective (Brian) Andrekovich before the Jefferson County Court of Common Pleas and, if necessary and deemed appropriate by Borough Council, on appeal to the Commonwealth Court of Pennsylvania.’

“Although Borough Council respects Jefferson County Common Pleas Judge John Foradora’s opinion in the Andrekovich case, they are obligated to appeal his decision.”

In the opinion issued Thursday, Judge Robert Simpson wrote, “The borough’s lack of policies regarding where to detain suspects, when to call for medical assistance or when to call for back-up, coupled with the lack of a common understanding as to how to handle the situation, supports the commission’s reinstatement of the officer. Accordingly, the trial court affirming the commission is affirmed.”

Much of the debate in Andrekovich’s case stems around why he did not call for back-up or seek medical assistance for Obbish, who was extremely intoxicated and taking medication for mental health issues when staff called police from the Goodwill Store in the Punxy Plaza, where Obbish was located and taken into custody.

However, in its order, the commission found that the borough has “no policies, procedures, rules or regulations as to the exercise of discretion in calling for a medic or back-up in transporting a suspect or detaining a prisoner,” Simpson wrote. “Thus, the commission reasoned the decisions regarding whether to call for a medic or assistance with transport are within the complete discretion of the officer. Because the borough had no policies governing the officer’s handling of the suspect during the incident, the commission held the officer did not violate any established legal duty as a predicate to the charges.”

Simpson wrote that the borough relied on the cases of Moore v. Borough of Ridley Park and Borough of Edgeworth v. Blosser to support its position that “lack of a policy is not fatal to the charges,” and in both cases, the Commonwealth Court held that “to require a written directive on the most basic of job requirements would be inane.”

However, Simpson wrote this case is more analogous to Appeal of Appel, in which a “borough charged the arresting and monitoring officers with neglect when a suspect hung himself by his belt in a holding cell. The borough argued the failure of the arresting officer to remove the suspect’s belt and shoelaces contradicted standard procedure. This court reversed, thereby negating the discipline.

“The court noted that the decision to remove belts was not governed by a policy or common understanding; rather, it was a matter left to the discretion of the arresting officer,” Simpson wrote. “Absent a duty to remove the belt, failure to do so could not be the predicate for a breach of legal duty — no matter how tragic the consequences.

“When a duty is fundamental to an officer’s obligations, failure to perform that duty may be a finding for neglect even when the duty is unwritten,” Simpson wrote. “That was the case in Moore and Blosser. That was not the case in Appel, however, and it is not the case here.

“The consequences of an officer’s exercise of discretion may illuminate gaps in policies, but consequences alone do not give the borough license to penalize the officer as though he would have anticipated the suspect’s death,” he wrote.

Jay Lundy, the borough’s solicitor, said he had a copy of Simpson’s order and had not yet had a chance to review it, thus declining comment.

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