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decided: June 29, 1973.


Appeal from the Order of the State Civil Service Commission in case of In Re: Appeal of Alfred B. Williams, No. 1210.


Steven E. Abraham, with him R. Merle Heffner and Jack E. Feinberg, for appellant.

Sidney V. Blecker, Assistant Attorney General, with him Marx S. Leopold, Assistant Attorney General, for appellee.

Judges Crumlish, Jr., Mencer and Blatt, sitting as a panel of three. President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Blatt. Dissenting Opinion by Judge Kramer. Judge Crumlish, Jr., joins in this Dissenting Opinion. Dissenting Opinion by Judge Mencer.

Author: Blatt

[ 9 Pa. Commw. Page 439]

Alfred B. Williams (Williams) was employed by the Department of Public Welfare (Department) as a Youth Development Counselor I, regular status, at Youth Forestry Camp No. 3 in Huntingdon County. In the early morning hours of September 20, 1971, he discovered three students outside the dormitory building, apparently attempting to escape. He took them to his office, where they were joined by a fourth, who admitted that he had also planned to join in the escape attempt. Williams talked with the boys for about two hours, then sent them back to bed. He said he thought that, if he could get even one of them to sleep, it would end the entire plan to escape. Three of the boys returned to their own beds in one of the rooms, but the fourth, who was normally housed in another wing, also went to a vacant bed in the same room with the others. There is a dispute between the students and Williams as to whether or not he accompanied them to the room, but, even if he did, he apparently failed to note that none of the boys removed his clothes before lying down on his bed. Williams says that he looked in on the boys once after they had presumably gone to bed, but, the boys soon after that absconded, stealing a camp vehicle and riding away in it. They were subsequently captured and returned to the camp. Williams admittedly took no special precautions to prevent the second attempted escape.

[ 9 Pa. Commw. Page 440]

The Director of the Camp requested an investigation of the incident by the State Police, interviewed the four students concerned and also gave Williams an opportunity to present his version of the incident. Subsequently, in a letter dated October 26, 1971, the Camp Director dismissed Williams from his position. This letter stated the reasons for dismissal as follows: "You in the early morning of September 20, 1971 were grossly negligent in your handling of a situation in which four students absconded from Dormitory B, Youth Forestry Camp #3, in a stolen state vehicle. Having prior knowledge of their planned runaway, you did not take the appropriate and necessary action in terms of preventive measures. Illustrative of this is that you permitted all four students to sleep in the same dormitory wing fully clothed even though you were aware that one student was assigned to the opposite wing of the building. You also used extremely poor judgment in the manner in which you counseled them concerning the situation. As a result of this negligence, these students broke into the administration building and then stole a state owned vehicle, endangering both themselves and the public in general."

Williams filed a timely appeal with the Pennsylvania Civil Service Commission (Commission), which, following a hearing, handed down an adjudication sustaining the dismissal. The Commission made the following pertinent findings of fact:

"7. Appellant was aware that four students had plans to abscond.

"8. The four students had a history of absconding.

"9. Appellant found three of the students outside the dormitory; they returned to the office with him and were joined by a fourth student who stated he also planned to abscond.

[ 9 Pa. Commw. Page 441]

"10. After talking with the students, appellant failed to take any further precautions to prevent an abscondence including making certain the students removed their clothes on returning to bed.

"11. Appellant failed to observe that one of the four students did not return to his own bed in another wing, but took a vacant bed in the room with the other three students." The Commission also noted that Williams was aware of a number of measures which had been recommended to the staff to prevent escapes, although these were not set forth in any written regulations. Among such measures were: calling a group meeting, taking the boys' clothes and shoes, sitting where the counselor could observe the dormitory, or having a student "junior counselor" sit there to observe. The Commission pointed out that Williams not only failed to take any of these measures to prevent the second escape attempt, but that he also testified to having told one of the students involved that, if they ran, he could do nothing about it.

"On appeal to this Court, an adjudication of the State Civil Service Commission shall be affirmed unless it appears that such was not in accordance with law, that any finding of fact necessary to support such adjudication is not supported by the evidence or that the constitutional rights of the appellant have been violated. Department of Transportation v. State Civil Service Commission, 5 Pa. Commonwealth Ct. 263, 290 A.2d 434 (1972). It is the duty of the State Civil Service Commission to determine the credibility of witnesses, appearing before the Commission and to determine the value of their testimony. Mettee v. Civil Service Commission, 6 Pa. Commonwealth Ct. 82, 293 A.2d 147 (1972). This Court will not weigh, but only examine, the evidence and will not substitute its judgment for that of the Commission. Gibbs v. State Civil Service

[ 9 Pa. Commw. Page 442]

Commission, 3 Pa. Commonwealth Ct. 230, 281 A.2d 170 (1971)." Ricker v. Civil Service Commission, 7 Pa. Commonwealth Ct. 329, 332, 300 A.2d 293, 295 (1973). See Corder v. Civil Service Commission, 2 Pa. Commonwealth Ct. 462, 279 A.2d 368 (1971).

Guided by these well established principles, we must hold, of course, that Williams could be removed from his position as a regular employee only for "just cause."*fn1 And, as we have previously stated: "We are able to discern that the legislative intent relating to one's relationship with the classified service turns upon a merit concept. This means that any 'personnel action' carried out by the Commonwealth is to be scrutinzed in the light of such merit criteria, as has the party failed to properly execute his duties, or has he done an act which hampers or frustrates the execution of same. The criteria must be job-related and in some rational and logical manner touch upon competency and ability." Corder, supra, 2 Pa. Commonwealth Ct. at 467, 279 A.2d at 371.

If Williams was in fact guilty of gross negligence in the performance of his duties as charged, therefore, it is clear that this would be "just cause" for his removal. The question is whether or not the Commission had before it competent evidence to ...

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