Fired Darby cop wins appeal, ordered back to work
A Darby Borough police officer fired in 2012 is expected to return to work on the heels of a Pennsylvania Supreme Court order Thursday.
“They must immediately begin paying him and they must immediately put him back on the schedule,” said Stanton Miller, an attorney representing Officer Peter Ray in his four-year battle against the borough and its Civil Service Commission.
Ray, a 15-year veteran of the Darby police force, was fired in April 2012 for neglect of duty and conduct unbecoming an officer after police did not respond to a call at a Pine Street house where a rape was later reported.
A Delaware County Common Pleas Court order upheld Ray’s firing, but a Jan. 5 opinion from the Commonwealth Court reversed that order and reinstated Ray with full back pay.
Pennsylvania Commonwealth Court President Judge Mary Hannah Leavitt denied Darby’s application to rehear argument in February and the Pennsylvania Supreme Court issued an order Thursday denying an application for appeal.
“What it means is, as of yesterday morning, the original order that was decided on and issued by the Commonwealth Court back in January is immediately enforceable,” said Miller. “From our perspective, as of yesterday, (Darby) must immediately start paying him at the full rate of pay to which he would be entitled had none of this happened and he remained in service.”
A calculation will also have to be made on back pay and interest at a statutory 6 percent rate of accrual, said Miller. He indicated a separate filing would be made for reimbursement of any out-ofpocket expenses Ray and his family might have had for health care costs during his termination period, and there may be some calculation for missed advancement opportunities as well.
Attorneys for the borough and Civil Service Commission did not return calls for comment Friday. Darby Borough Manager Mark Possenti also did not return a call.
The case stemmed from three 911 calls made Feb. 28, 2012, for a house on the 700 Block of Pine Street. Ray and other officers responded to the first call for a report of a woman yelling at 6:03 p.m. and found an intoxicated woman who appeared to be about 20 years old in the basement of the house, according to the Commonwealth Court opinion issued in January.
Ray could not understand the woman’s name due to slurred speech and a thick accent, and she did not offer any identification, according to the opinion. She allegedly told Ray and two other officers that she wanted to dance and that she was all right. A second call for a young woman yelling came in at 6:23 p.m. Officer John Ettore responded to dispatch and Ray also said over the radio that “we just came from there, they are putting her to bed.”
No officer responded to the second call, but Officer Keith Parker did return to the house after a third 911 call at 6:32 p.m. and told the homeowner that he would be cited if the noise did not cease.
Officers received a report from a young woman the following day that she had been raped at the house and an investigation followed. Two men were arrested on rape and related charges, but were ultimately acquitted.
Darby Police Chief Robert Smythe presented Ray with a notice of charges April 5, 2012, explaining that he failed to take appropriate action by waiving Ettore off the second call, failing to respond to the second call himself, and failing to take the woman into custody or to a hospital after finding her intoxicated.
Ray attended a hearing on the charges April 10. He was suspended the following day and terminated at a borough council meeting April 18.
Ray demanded a hearing before the Civil Service Commission, which sustained the suspension and termination, finding he had “cancelled” the second call and failed to take the woman into custody. Ray appealed to the Common Pleas Court, which affirmed the commission’s findings.
On appeal to the Commonwealth Court, Ray argued the commission’s findings concerning neglect of duty and conduct unbecoming an officer were not supported by substantial evidence.
He testified at the commission hearings that he advised Ettore that “it was a drunken female or a female who was intoxicated at the time, and the family was supposed to be putting her to bed.” He said it is “pretty much police protocol” to advise another officer responding to a second or third call at the same location about what had already transpired there and what to expect.
This did not amount to Ray “cancelling the call,” however, and he never instructed Ettore not to go to the house, according to the opinion.
Smythe told the commission that while Ray did not use the word “cancel,” he did tell Ettore officers had already been to that location, “and with that the 911 center clears the call.”
Local agency hearings are not bound by technical rules of evidence, but the Commonwealth Court noted they are also not “evidentiary free-fire zones” and found Smythe’s testimony amounted to uncorroborated hearsay that did not support the charge of neglect of duty. Ettore did not testify at the hearings.
The Commonwealth Court also found Ray was within his discretion not to take the woman into custody or to a hospital, as there was no evidence of written policies or procedures for that situation. That he did not remove the woman from the house may have been an error of judgment, the opinion said, but it did not rise to the level of official neglect or conduct unbecoming an officer.
Miller said his client is grateful for the court’s decision and the support he received from the Fraternal Order of Police. Ray has been working as a part-time officer since his termination, but that work is not guaranteed, does not come with benefits and is only paid hourly, Miller said.
“He believes wholeheartedly that it is the correct resolution, that he did nothing wrong, and he is looking forward to going back to work for the police department in Darby,” said Miller.