
    Gorman, Removal of, In Re: Painesville (City) et, Appellants, v. Gorman, Appellee.
    Ohio Appeals, Seventh District, Lake County.
    No. 652.
    Decided May 25, 1961.
    
      Mr. Wayne B. Milburn, for appellants.
    
      Messrs. Donaldson & Golgrove, for appellee.
   Griffith, J.

Thomas Gorman was a member of the Fire Department of the City of Painesville. On March 24, 1959, the Chief of the Department dismissed him for his failure to report for duty. For a number of years theretofore, he had been retired from active duty and placed on the pension rolls because of physical disability. The trustees of the Firemen’s Relief and Pension Fund removed him from the pension rolls as of December 1, 1958, because a physical examination revealed that he was capable of active duty.

By letter dated December 10, 1958, the Fire Chief ordered him to return to regular duty immediately as a member of the Department and also requested him to report for instructions as to uniform requirements and as to the shift upon which he would work. The evidence reveals that the letter dated December 10, 1958, was received by Gorman on December 16, 1958, at the Lake County Memorial Hospital where he was confined having undergone an inguinal hernia operation.

The Chief of the Department was notified of Gorman’s confinement in the hospital and was advised by letter from Dr. Morris G. Carmody that Gorman was unable to resume his duties because of the operation.

On March 23, 1959, Gorman reported to the Chief that he would be ready to start work on April 1, 1959. On March 26, 1959, the Fire Chief, by letter, advised Gorman that he was removed from the Department. The Fire Chief’s order of removal was submitted to the then City Manager of Painesville, and a hearing was held before him relative to. the sufficiency of the cause in the order of removal, to-wit:

“That Thomas J. Gorman, the appellant herein, had wilfully failed to report for duty.”

On April 23, 1959, Gorman received a letter from the City Manager to the effect that he was dismissed from the Fire Department for the reasons given by the Chief.

On April 30, 1959, Gorman filed Notice of Appeal with the Civil Service Commission of the City of Painesville together with an answer to the charges. Hearing was had on May 19, 1959; a transcript of the record of the hearing before the City Manager was submitted to the Commission. The Commission sustained the order of removal on July 14, 1959.

Tbe matter was appealed to tbe Court of Common Pleas, and tbe only evidence before that Court was tbe record of tbe proceedings in tbe bearing before tbe City Manager, together with tbe exhibits and order of removal.

On October 24,1960, tbe Court of Common Pleas disaffirmed in toto tbe ruling of tbe Painesville Civil Service Commission and ordered Gorman reinstated. From tbis order of thé Common Pleas Court, appeal was taken to tbis court on questions of law.

Tbis proceeding was bad pursuant to Section 143.27, Revised Code, and, while tbe journal in tbe Common Pleas Court indicates that that court beard it de novo, we believe that tbe matter was before tbe Court of Common Pleas on appeal on questions of law only.

In tbe case of Sorge, Appellee, v. Sutton et al., Appellants, 159 Ohio St., 574, tbe syllabus reads as follows:—

“Tbe word, ‘appeal,’ has no conclusive meaning, and where by statute there is given a right of ‘appeal’ to a designated court from an order or decision of an administrative agency, it is necessary to examine tbe context of tbe statute to determine tbe powers and functions of such court on tbe appeal.
“Under Section 487-17a, General Code, tbe ‘appeal’ from.a decision of a municipal civil service commission to tbe Court of Common Pleas, ‘to determine the sufficiency of tbe cause of removal,’ accorded members of police and fire departments in tbe classified civil service contemplates only a review of tbe proceedings before tbe commission as to their legality and regularity and to determine tbe sufficiency of tbe cause of removal, and not a trial de novo.”

After a careful reading of tbe record of proceedings taken before tbe City Manager and presented to tbe Court of Common Pleas, we believe that court had ample evidence in support of its conclusion:—

“That Mr. Gorman was removed from bis position when he was temporarily disabled by reason of sickness and that, therefore, this removal was illegal.”

There is evidence that Gorman was disabled from December 10, 1958, until March 23, 1959, and possibly a little longer, as Dr. Carmody’s testimony indicates. Tbe only evidence before the Common Pleas Court with respect to Gorman’s physical condition was that of Mr. Gorman himself, Dr. Carmody’s testimony, and the hospital exhibits.

Gorman claimed that he reported to the Chief on March twenty-third and gave him a week’s notice. The Chief wanted him to go to work on March twenty-fourth. If Gorman was disabled and unable to work, the Chief was in error in removing him because he failed to report for duty. If, on the other hand, he was able to work and wilfully refused to work, the Chief was within his rights in the order made.

The Common Pleas Court disaffirmed the ruling of the Civil Service Commission and reinstated Gorman. This reviewing court will accept the determination of the Common Pleas Court unless it is so manifestly against the weight of the evidence as to shock the conscience to permit it to stand.

The trial court very positively disaffirmed in toto the ruling of the Civil Service Commission, and we are constrained to accept the trial court’s finding and, therefore, affirm the judgment.

On the question of the weight of the evidence, this court can reverse the judgment below only when the judgment is so manifestly contrary to the mature and reasonable inference to be drawn from the evidence as to produce a result in complete violation of substantial justice.

We believe that substantial justice has been done in the ruling of the Common Pleas Court. Judgment affirmed.

Brown, P. J., Donahue, J., concur.  