Appeal to the Court of Common Pleas of Dauphin County from the adjudication and order of the State Civil Service Commission, No. 1043. Appeal transferred September 1, 1970, to the Commonwealth Court of Pennsylvania.
James W. Evans, with him, Goldberg, Evans & Katzman, for appellant.
Vincent J. Dopko, Deputy Attorney General, with him John P. Fernsler, Deputy Attorney General and Fred Speaker, Attorney General, for appellee.
President Judge Bowman, and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Barbieri. Opinion by Judge Barbieri. Concurring Opinion by Judge Crumlish, Jr.
Virginia Woodring Moore appeals from the adjudication by a majority of the State Civil Service Commission sustaining the action of the Commissioner of Professional and Occupational Affairs in ordering her
removal from her position as Secretary of the State Board of Nurse Examiners. Her threefold contentions before us are (1) that the Commissioner was without authority to order her removal because he is not the appointing authority for the post of Secretary, State Board of Nurse Examiners; (2) that, even if he were, there are no findings of fact supported by substantial and credible evidence to support the order of the Civil Service Commission; and (3) that the dismissal order is defective because it is based upon discrimination or nonmerit reasons. As will appear, it will be unnecessary for us to consider appellant's second and third contentions.
It is basic in the law of this Commonwealth, stemming from Article VI, Section 7 (formerly Section 4), of the Pennsylvania Constitution, that the employe's superior having the power to appoint to the position has the power of removal. See Suerman v. Hadley, 327 Pa. 190, 199, 193 A. 645, (1937). "Appointing authority" is defined in Section 3 of the Civil Service Act of 1941, as amended, subsection (e),*fn1 as ". . . the officers, board, commission, person or group of persons having power by law to make appointments in the classified service". (Emphasis added.) That Act also provides in subsection (a) of Section 807, (71 P.S. 741.807) that: "no person in the classified service shall be removed except for just cause. . . [W]ritten notice of removal setting forth the reasons for such action and effective date thereof must be furnished. They shall have ten days from the receipt of such notice to give the appointing authority such written answer as the person removed may desire . . ."; and in subsection (b) that "Charges against any employee in the classified service asking for his removal for a violation of law or for any cause enumerated in the rules may be filed by any
citizen or taxpayer with the appropriate appointing authority and with the director". (Emphasis added.)
Section 951.5 of the Civil Service Commission rules provides: "Procedure under Section 951(a) Civil Service Act. The appointing authority will go forward to establish the charge or charges on which the personnel action was based.*fn2 (Emphasis added.)
It follows from all of the above that unless the removal action and the proceedings before the Civil Service Commission were carried out by appellant's "appointing authority", the adjudication appealed from cannot be sustained.
Appellant was "elected" by the State Board of Nurse Examiners to serve as Secretary to the Board from a group of five applicants by a vote on September 26, 1957. Approval of the Governor was required so that her appointment was not effective until January 2, 1958. The Board, then part of the Department of Public Instruction, also voted to fix her salary with the approval of the Superintendent of Public Instruction. This was in accordance with Section 418 of the Administrative Code,*fn3 which reads: "The State Board of Nurse Examiners shall consist of the Superintendent of Public Instruction and five members who shall be registered nurses . . . Three members of the Board shall constitute a quorum, and the Board shall select, from among its members, a chairman and shall elect a secretary who need not be a member of the Board . . . [T]he secretary shall receive such reasonable compensation as shall be determined by the Board, with the approval of the Superintendent of Public Instruction".
By amendment to the Administrative Code in 1963, the State Board of Nurse ...