Appeal from order of Pennsylvania State Civil Service Commission, No. 689, in case of Harry L. Hunter v. Pennsylvania State Civil Service Commission.
Jerome H. Gerber, with him Handler and Gerber, for appellant.
Edgar R. Casper, Deputy Attorney General, with him Edward Friedman, Deputy Attorney General, for Pennsylvania State Civil Service Commission, appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Musmanno, Mr. Justice Jones and Mr. Justice Cohen dissent.
Prior to the Act of August 27, 1963, P. L. 1257, 71 P.S. §§ 741.3-741.1005 (Supp. 1965), appellant, Harry L. Hunter, an employee of the Department of Revenue of the Commonwealth of Pennsylvania, held a position classified under executive civil service.*fn1 By virtue of that Act, his position was placed under coverage of legislative civil service and, in accordance with the provisions thereof, appellant was given probationary status for a period of eighteen months.
During this probationary period, appellant received notification from the Secretary of Revenue that he was being dismissed because of "unsatisfactory work." Alleging
that his discharge was actually motivated by political discrimination, appellant sought a hearing before the Civil Service Commission. Upon the refusal of the commission to inquire into appellant's charge, he obtained a writ of mandamus from the Commonwealth Court directing the commission to afford him a hearing. On appeal, this Court affirmed the issuance of the writ. Hunter v. Jones, 417 Pa. 372, 207 A.2d 784 (1965).
A hearing was thereafter held by the Civil Service Commission, at which time appellant attempted to establish his allegation of discrimination. At the termination of the proceedings, the commission concluded that appellant had failed to establish that his discharge had been motivated by non-merit factors, finding that he had been removed for just cause.*fn2 An order was entered sustaining the action of the Secretary of Revenue in dismissing appellant from his position. Thereupon, appellant filed a petition under Rule 68 1/2 which was granted and the case brought before this Court for review.
Recognizing that the scope of our review on this appeal is in the nature of narrow certiorari, see Keystone Raceway Corp. v. State Harness Racing Comm'n, 405 Pa. 1, 5-6, 173 A.2d 97, 99 (1961); DeVito v. Civil Service Comm'n, 404 Pa. 354, 357-59, 172 A.2d 161, 163 (1961), appellant does not challenge the findings of the commission that his dismissal was non-discriminatory. Rather, he contends that the commission erred in construing the Civil Service Act not to require
the Budget Secretary to conduct an independent investigation prior to the discharge of a probationary employee for unsatisfactory work.*fn3 Appellant contends that the Act should be read so as to impose upon the Budget Secretary the non-delegable duty of conducting such an ...