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GIBBS v. CIVIL SERVICE COMMISSION (08/31/71)

decided: August 31, 1971.

GIBBS
v.
CIVIL SERVICE COMMISSION



Appeal to the Court of Common Pleas of Dauphin County from the adjudication of the State Civil Service Commission in case of appeal of Jean B. Gibbs, No. 1011. Appeal transferred September 1, 1970 to the Commonwealth Court of Pennsylvania, No. 766 Tr. Dkt. 1970.

COUNSEL

Paul A. Simmons, with him Hormell, Tempest, Simmons, Bigi & Melenyzer, for appellant.

C. Francis Fisher, Special Assistant Attorney General, with him Donald J. Lee, Special Assistant Attorney General, Jacques H. Fox, Assistant Attorney General, Marx S. Leopold, General Counsel, and J. Shane Creamer, Attorney General, for appellee.

Judges Crumlish, Jr., Kramer and Mencer, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 3 Pa. Commw. Page 232]

This is an appeal involving an order of the State Civil Service Commission which upheld the dismissal of appellant from her position as Beautician I at the Western State School and Hospital. Appellant contends that her dismissal was not based upon substantial evidence of "just cause". We agree.

Appellant served as a regular status beautician at Western State from November 17, 1968 until her removal on November 17, 1969. The reason given for her removal was "unsatisfactory" work performance. Upon request, the Commission granted a hearing and, after taking testimony, affirmed the dismissal. The appeal of the Commission's decision is now before this Court.

The Commission argues that this appeal is before us on narrow certiorari. O'Peil v. State Civil Service Commission, 424 Pa. 151, 225 A.2d 546 (1967); Beard v. State Civil Service Commission, 424 Pa. 146, 225 A.2d 543 (1967); Hunter v. State Civil Service Commission, 422 Pa. 158, 220 A.2d 879 (1966); DeVito v. State Civil Service Commission, 404 Pa. 354, 172 A.2d 161 (1961). If the Commission is correct, our review would be limited to: (1) questions of jurisdiction; (2) the regularity of the proceedings; (3) a determination as to whether or not the Commission exceeded its authority; and (4) a consideration of constitutional violations. Although review of Commission decisions was limited to these issues, the Constitutional amendments of April 23, 1968, Article V, Section 9, as implemented by the Administrative Agency Law, Act of June 4,

[ 3 Pa. Commw. Page 2331945]

, P.L. 1388, as amended, 71 P.S. § 1710.1 et seq. at §§ 1710.44, 1710.47 and 1710.51(a)(43), and by the Appellate Court Jurisdiction Act, Act of July 31st, 1970, P.L. , No. 223, Section 508(a)(71), 17 P.S. § 211.508(a)(71), have broadened the scope of this Court's review power.

This Court most recently discussed this issue in Corder v. Civil Service Commission, 2 Pa. Commonwealth Ct., 462, 279 A.2d 368 (July 9, 1971). There Judge Kramer in speaking for the Court, said: ". . . the right of appeal by a party aggrieved, although limited by the Civil Service Act of August 5, 1941, as amended, 71 P.S. 741.951(c) has been expanded by § 1710.47 of the Administrative Agency Law. The statute, inter alia, declares: 'Where an Act of Assembly expressly provides that there shall be no appeal from an adjudication of an agency, or that the adjudication of an agency shall be final or conclusive, or shall not be subject to review, . . . any person aggrieved by such an adjudication, . . . may nevertheless appeal the same . . . to the [Commonwealth Court].'

"The scope of review to be employed by our Court derives from the Administrative Agency Law, supra, 71 P.S. 1710.44, which states: 'The court to which the appeal is taken shall hear the appeal without a jury on the record certified by the agency. After hearing the court shall affirm the adjudication unless it shall find that the same is in violation of the constitutional rights of the appellant, or is not in accordance with law, . . . or that any finding of fact made by the agency and necessary to support its adjudication is not supported by ...


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