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WILLIAM E. FOSTER v. COMMONWEALTH PENNSYLVANIA (06/28/74)

decided: June 28, 1974.

WILLIAM E. FOSTER, 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 E. Foster, No. 1400.

COUNSEL

Saul Davis, for appellant.

Marx S. Leopold, with him Louis Kwall, Special Assistant Attorney General, and Barnett Lieberman, Assistant Attorney General, for appellee.

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

Author: Rogers

[ 14 Pa. Commw. Page 252]

William E. Foster, formerly the person in charge of maintenance at Woodville State Hospital of the Department of Welfare, was suspended for thirty days and then removed from that position and from his Civil Service classification of Institutional Superintendent V, regular status, by the Acting Superintendent of the hospital.*fn1 The Civil Service Commission dismissed Mr. Foster's appeals and he appealed its action to this court. On February 1, 1974 we filed our opinion and order sustaining the appeal on the sole ground that the Acting Superintendent of Woodville State Hospital was not Mr. Foster's appointing authority. The Commonwealth filed a petition for reargument, citing for the first time in these proceedings Section 1111 of the Public Welfare Code, Act of June 13, 1967, P.L. 31, art. 11, 62 P.S. ยง 1111 providing, inter alia, that "He [the Commissioner of Mental Health] shall recommend to the secretary [of Welfare] the appointment of the superintendents of State mental institutions who in turn shall assign, appoint and dismiss personnel of the institutions."*fn2

[ 14 Pa. Commw. Page 253]

We granted and conducted reargument and the matter is again before us for decision.

In counter to the provisions of statute lately cited by the appointing authority, the appellant argues that the record does not establish that the acting superintendent was appointed on recommendation of the Commissioner of Mental Health and that an acting superintendent in any case does not have the power of a superintendent. The person who suspended and removed the appellant did so in her capacity, uncontested in the record, as acting superintendent of Woodville State Hospital. In Commonwealth ex rel. Palermo v. Pittsburgh, 339 Pa. 173, 13 A.2d 24 (1940), the issue was the validity of Palermo's appointment as a city clerk by one Neubauer then acting as city public safety director without asserted necessary confirmation by city council. The Supreme Court held that it was unnecessary for it to determine whether Neubauer was de jure the director of public safety because under the law acts affecting the public and third persons as distinguished from those benefiting themselves of de facto public officials -- that is, persons actually performing offices under color of authority -- are valid. By the same principle, therefore, the acting superintendent's suspension and removal actions were not subject to contest by the appellant.

We are, therefore, required to consider the appellant's appeal from the Civil Service Commission's approval of his suspension and removal on the merits.

The appellant's thirty day suspension and removal were founded on the following reasons, timely provided:

"A. Misconduct of duty which tends to be of a disgraceful nature which results in ...


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