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JAMES L. MCCANN v. JAMES D. BARGER (01/11/74)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 11, 1974.

JAMES L. MCCANN, APPELLANT,
v.
JAMES D. BARGER, COMMISSIONER, PENNSYLVANIA STATE POLICE, APPELLEE

Appeal from the Order of the Commissioner of the Pennsylvania State Police in case of Order of Demotion 73-20.

COUNSEL

William R. Bernhart, with him Frederick J. Georgi and Austin, Speicher, Boland, Connor & Giorgi, for appellant.

J. Andrew Smyser, Deputy Attorney General, with him Benjamin Lerner, Deputy Attorney General, and Israel Packel, Attorney General, for appellee.

Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. President Judge Bowman did not participate. Opinion by Judge Rogers.

Author: Rogers

[ 11 Pa. Commw. Page 518]

James L. McCann, an enlisted member of the Pennsylvania State Police, commissioned a Lieutenant on September 21, 1972, here appeals from a personnel order of the Commissioner of the Pennsylvania State Police made May 2, 1973, without Court-Martial, reducing McCann's rank to that of Trooper. The appellant asserts that he is entitled to be heard by court-martial. The Commissioner's action was based upon the asserted violations by former high ranking officers of the Force of regulations which, if observed, would here render McCann ineligible to take the examination for Lieutenant, his passing of which was a requisite to commissioning. It is the position of the Commissioner, upon the advice of a Deputy Attorney General, that a court-martial was not required in these circumstances and that the allegedly improper commissioning could be set aside by

[ 11 Pa. Commw. Page 519]

    administrative order. The law is plainly to the contrary. Section 205(e) of the Administrative Code of 1929, as amended, Act of April 9, 1929, P.L. 177, 71 P.S. ยง 65(e) provides: " No enlisted member of the Pennsylvania State Police shall be dismissed from service or reduced in rank except by action of a Court-Martial held upon the recommendation of the Commissioner of the Pennsylvania State Police and the Governor."*fn1 (Emphasis supplied.)

We therefore make the following

Order

And now, this 11th day of January, 1974, the appeal of Lieutenant James L. McCann is sustained; the record is remanded to the Commissioner of the Pennsylvania State Police for such further action in compliance with law as the Commissioner shall deem appropriate.

Disposition

Appeal sustained. Record remanded.


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