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HAZEL M. FLEMING v. COMMONWEALTH PENNSYLVANIA (05/06/74)

decided: May 6, 1974.

HAZEL M. FLEMING,
v.
COMMONWEALTH OF PENNSYLVANIA, STATE CIVIL SERVICE COMMISSION, APPELLEE



Appeal from the Order of the State Civil Service Commission in case of Appeal of Hazel M. Fleming, No. 1357.

COUNSEL

Andrew K. Parker, with him Parker & Cohen, for appellant.

Sidney V. Blecker, Assistant Attorney General, with him Marx S. Leopold, Assistant Attorney General, and Israel Packel, Attorney General.

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

Author: Crumlish

[ 13 Pa. Commw. Page 422]

This is an appeal from an Adjudication and Order of the Civil Service Commission, Commonwealth of Pennsylvania, sustaining the suspension and removal of Hazel M. Fleming (Fleming) as Licensed Practical Nurse I with Laurelton State School and Hospital.

On September 8, 1972, Fleming was suspended by letter for "incidents of unsatisfactory work performance which jeopardized the health and safety of the residents" of Laurelton State School and Hospital where she had been a probationary Licensed Nurse I since

[ 13 Pa. Commw. Page 423]

    entering Civil Service employment on or about April 17, 1972. On September 11, 1972, Fleming appealed her suspension to the Civil Service Commission (Commission). By letter dated September 18, 1972, Fleming was removed from her employment which was also appealed to the Commission the following day.

After hearing, the Commission sustained the suspension and removal of Fleming. Fleming now appeals to us.

We think it is important to mention that Fleming's appeal to the Commission was brought under provisions of Sections 905(a) and 951(b) of the Civil Service Act, Act of August 5, 1941, P.L. 752, as amended, 71 P.S. ยง 741.1 which gives a probationary employee the right to a hearing to determine if her suspension or removal was based on discriminatory or other non-merit factors.

In such a situation, review of the Commission's action by the Commonwealth Court of Pennsylvania is limited to a determination of whether the adjudication violated the constitutional rights of the Appellant or was not in accordance with law, or that a finding of fact necessary to support the adjudication was not supported by substantial evidence. Scasserra v. Civil Service Commission, 4 Pa. Commonwealth Ct. 283, 287 A.2d 158 (1972); Gibbs v. Civil Service Commission, 3 Pa. Commonwealth Ct. 230, 281 A.2d 170 (1971).

Fleming initially contends that her suspension and dismissal was based on discriminatory and other non-merit criteria. Clearly the burden is hers to substantiate the charge, Hunter v. Jones, 417 Pa. 372, 207 A.2d 784 (1965), and a careful review of the record reveals that Fleming has failed to overcome this burden. Substantial if not overwhelming testimony supports the Commission's finding that Fleming's suspension and removal were ...


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