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WILLIAM O'D. COTTER v. COMMONWEALTH PENNSYLVANIA (04/16/74)

decided: April 16, 1974.

WILLIAM O'D. COTTER, APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, STATE CIVIL SERVICE COMMISSION, APPELLEE



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

COUNSEL

Richard S. Friedman, for appellant.

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

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer.

Author: Mencer

[ 13 Pa. Commw. Page 50]

The Department of Transportation dismissed William O'D. Cotter (Cotter) on November 9, 1971. He

[ 13 Pa. Commw. Page 51]

    was a regular status employee and held the position of Management Analyst III.

On September 27, 1971, a criminal complaint was filed by a member of the Pennsylvania State Police wherein it was alleged that Cotter was an accessory after the fact in the sale of a stolen motor vehicle with a defaced serial number.*fn1 Cotter appealed his dismissal to the State Civil Service Commission which scheduled a hearing on the appeal for December 15, 1971. Cotter unsuccessfully sought a continuance of this hearing, and on an earlier appeal to this Court we remanded and held that the Commission had abused its discretion in refusing the continuance.*fn2

After the conclusion of the pending criminal charges filed against Cotter, the Commission, on April 18, 1973, held a de novo hearing*fn3 on Cotter's dismissal. The Commission, by order dated June 8, 1973, dismissed Cotter's appeal and sustained the action of the Department of Transportation in dismissing Cotter. This appeal followed and we affirm.

As stated in Corder v. Civil Service Commission, 2 Pa. Commonwealth Ct. 462, 465, 279 A.2d 368, 369 (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

[ 13 Pa. Commw. Page 52]

    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 ...


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