Appeal from the Order of the Commonwealth of Pennsylvania State Civil Service Commission in case of Appeal of James F. Warner, No. 1187.
F. Emmett Fitzpatrick, Jr., with him Joseph Michael Smith, Fitzpatrick & Smith, for appellant.
Alexander J. Jaffurs, Assistant Attorney General, for appellee.
Judges Crumlish, Jr., Rogers and Blatt, sitting as a panel of three. Opinion by Judge Rogers. Concurring and Dissenting Opinion by Judge Crumlish, Jr.
This is an appeal from an order of the State Civil Service Commission sustaining the action of the Pennsylvania Liquor Control Board in removing appellant from his position as an Enforcement Officer I, regular status.
The appellant was removed from his employment by the Liquor Control Board after consideration by it of the following charge: "Theft. On April 27, 1971, you unlawfully removed notes of investigation from the desk of Enforcement Officer Joseph J. Capparell. . . ." This charge followed upon the appellant's production at an earlier Civil Service Commission hearing, in which the appellant was charged with falsifying his expense account, of notes of investigation prepared by another enforcement officer.
At the hearing before the Commission on the instant charge, the Board offered in support of its removal action the testimony of a stenographer for the Board that she observed the appellant examining the contents of another officer's desk and the testimony of that officer that the notes of investigation later produced by the appellant were his and had been in his desk. The appellant admitted his intrusion into his fellow officer's desk, but stated that the purpose was to examine reports of arrests made by him and the other officer. He
claimed to have found the notes of investigation in a wastepaper basket.
Our examination of all of the testimony leads us to conclude that, accepting, as we must, the Commission's finding that the appellant removed the notes in question, the appellant should not have suffered the penalty here imposed. It would not be helpful for us to analyze appellant's conduct for proof of the essential elements of larceny; technically it might constitute that serious offense. Rather, we believe that appellant's conduct should be considered for what it was, not what it might in anathematical terms be denominated. The case of Thomas v. Kessler, 334 Pa. 7, 5 A.2d 187 (1939), still of diverting memory in Chester County, provides some guidance, if not a definitive precedent. There a mother and daughter, the beneficiaries of a trust the principal asset of which was the capital stock of a local newspaper, had been accustomed to stop at the newspaper office and take for their personal use stationery supplies. The president of the newspaper company, annoyed with this practice, instructed office employees not to permit the ladies to remove supplies. Despite these orders and over the protests of the employees, the ladies took some writing paper and envelopes, whereupon the president caused the daughter to be arrested on a charge of larceny. An indictment was ignored by the grand jury and the president of the newspaper was promptly sued for malicious prosecution. The court below entered a compulsory non-suit on the ground that there was probable cause for the prosecution. The Supreme Court reversed and awarded a new trial, saying: "When the facts and surrounding circumstances above outlined are considered, it is obvious no larceny was committed, that there was no felonious intent in plaintiff's mind, that she was not stealing a few sheets of paper, and that she took it because she thought, mistakenly perhaps, that
she had the right to. It has been repeatedly held that when one takes property under a claim of right, even though mistaken, larceny is not committed ...