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LUSANE v. CIVIL SERVICE COMMISSION (06/08/72)

decided: June 8, 1972.

LUSANE
v.
CIVIL SERVICE COMMISSION



Appeal from an Order of the State Civil Service Commission in case of Howard J. Lusane v. Pennsylvania Department of Public Welfare; Helene Wohlgemuth, Secretary of Public Welfare, dated July 15, 1971.

COUNSEL

Eugene F. Zenobi, Tri City Legal Services, for Appellant.

Marx S. Leopold, Assistant Attorney General, with him Sidney V. Blecker, Assistant Attorney General, and J. Shane Creamer, Attorney General, for appellees.

Judges Crumlish, Jr., Rogers and Blatt, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 5 Pa. Commw. Page 643]

The State Civil Service Commission sustained the action of the Department of Public Welfare in the suspension and removal of Howard J. Lusane from his position with the Department. Hence this appeal.

Appellant was originally employed on October 31, 1971 as a Child Care Aide I, with provisional status at Pennhurst State School and Hospital. On January 24, 1971, appellant was charged with assault and battery, aggravated assault and battery, wantonly pointing a deadly weapon and assault with intent to maim in connection with an incident that occurred outside the scope of appellant's employment. He was interviewed by the Personnel Director concerning these charges and was subsequently suspended from work for thirty days by the hospital superintendent under Section 803 of the Civil Service Act, Act of August 5, 1941, P.L. 752, Art. VIII, § 803, 71 P.S. § 741.803, for conduct unbecoming

[ 5 Pa. Commw. Page 644]

    a Commonwealth employee. Appellant was thereafter notified of his removal based upon these reasons. He has appealed this decision to the State Civil Service Commission, and subsequently to this Court, both to no avail.

Appellant contends that the Commission's finding of just cause for the suspension and removal was erroneous; that the Commission's finding that appellant was not dismissed for non-merit factors was also erroneous; and, that appellant was entitled to relief in the form of back pay for the period during which he was wrongfully removed. We disagree.

As stated in Corder v. Civil Service Commission, 2 Pa. Commonwealth Ct. 462, 465, 279 A.2d 368 (1971): "The scope of review to be employed by our Court derives from the Administrative Agency Law [Act of June 4, 1945, P.L. 1388, as amended, 71 P.S. § 1710.1, et seq. ], 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 substantial evidence.' The review then is not de novo but rather one which looks to error of law or abuse of discretion as the determinative criteria." The issue thus crystalizes into whether the Commission committed an abuse of discretion or error of law in affirming the removal of appellant. Gibbs v. Civil Service Commission, 3 Pa. Commonwealth Ct. 230, 233-234, 281 A.2d 170 (1971).

It is important to determine the status of appellant at the time of his removal. It is undisputed that appellant, during the ...


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