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COTTER v. STATE CIVIL SERVICE COMMISSION (11/13/72)

decided: November 13, 1972.

COTTER
v.
STATE CIVIL SERVICE COMMISSION



Appeal from the Order of the State Civil Service Commission in case of In Re: Appeal of William O'D. Cotter, No. 1212.

COUNSEL

Richard S. Friedman, with him Cooper, Friedman, Friedman & Klein, for appellant.

Reynold J. Kosek, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and J. Shane Creamer, Attorney General, for appellee.

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

Author: Mencer

[ 6 Pa. Commw. Page 499]

William O'D. Cotter, the appellant in this appeal, was an employee of the Commonwealth of Pennsylvania for approximately fifteen years prior to his dismissal on November 9, 1971. He was a regular status employee and held the position of Management Analyst III with the Pennsylvania Department of Transportation.

On September 27, 1971, a criminal complaint was filed by a member of the Pennsylvania State Police, accusing appellant of being an accessory after the fact in the sale of a stolen motor vehicle with a defaced serial number. As a result of the attendant publicity

[ 6 Pa. Commw. Page 500]

    following appellant's arrest on this complaint, the appellant was dismissed by letter as of November 9, 1971. On November 15, 1971, appellant appealed his dismissal to the State Civil Service Commission (Commission) which scheduled a hearing on the appeal for December 15, 1971.

Appellant requested a continuance of the hearing because of the pending criminal charges which formed the basis for his dismissal and for the more significant reason that his asserted privilege against self-incrimination, under the Fifth Amendment to the United States Constitution, and under Article I, Section 9, of the Pennsylvania Constitution, in the criminal proceeding, would compel him to refuse to testify at the hearing before the Commission, with the consequence that his defense to his dismissal would not be of record and available for the Commission's consideration or for judicial review. Appellant reasoned that, if he testified before the Commission, he would be subject to cross-examination under rules of evidence less stringent than those in a criminal court and that he might well be considered to have waived his privilege against self-incrimination.

The power to grant or refuse a continuance is an inherent power of a court and ordinarily is discretionary. The exercise of such discretion is usually not reviewable, except upon a clear showing of an abuse of discretion. The same general rules apply where the application for a continuance is addressed to an administrative agency. State Board of Medical Education and Licensure v. Williams, 172 Pa. Superior Ct. 448, 94 A.2d 61 (1953).

In determining whether or not there has been an abuse of discretion in granting or refusing a continuance, the chief consideration is whether the grant or denial ...


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