Appeal from the Order of the State Civil Service Commission in case of In Re: Appeal of Dr. James H. McClelland, No. 1423.
David W. Ketler, with him Wherry and Ketler, for appellant.
Marx S. Leopold, Assistant Attorney General, with him Israel Packel, Attorney General, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Blatt.
[ 14 Pa. Commw. Page 341]
On Saturday, April 14, 1973, Secretary of Public Welfare, Helene Wohlgemuth, inspected the Polk State School and Hospital (Polk), a Commonwealth institution for the retarded which is administered by the Department of Public Welfare (DPW). Polk is a large institution, approximately seventy-five years old, with a rated capacity of 1,800 patients and a staff of 1,850 employees. At the time in question, it had a resident population of 2,800, of whom possibly two-thirds were severely or profoundly retarded, while the remainder were either border-line, mildly or moderately retarded. During the course of her inspection, the Secretary observed "cages" or "pens," in one of which she saw a person confined. It was subsequently determined that Polk had five such pens, two of which had tops and were approximately five feet square and about five feet high. The other three pens were larger in area and had no tops. All were allegedly used only for the immediate control of mental retardates with psychotic tendencies who became hyperactive and thus constituted a danger to themselves as well as to other patients and to attendants. Secretary Wohlgemuth orally directed Superintendent James H. McClelland to remove the pens, which he agreed to do at once, and they were removed.
As a result of this visit, Secretary Wohlgemuth decided to remove Dr. McClelland as superintendent, and by letter dated April 16, 1973, she notified him of his dismissal effective May 1, 1973. The letter to Dr. McClelland set forth the following charges as the basis for his removal:
"1. The cruel, degrading, and inhumane conditions which I personally observed during my visit on April 14, 1973. This refers specifically to the locked 'cages' and pens in which you authorized the confinement of patients.
[ 14 Pa. Commw. Page 342]
"2. Severe and chronic deficiencies with respect to the proper training and orientation of professional and nonprofessional staff in the appropriate care and treatment of mentally retarded residents."
Dr. McClelland, who had been employed at Polk for approximately 32 years, appealed his dismissal to the State Civil Service Commission (Commission). After extensive hearings, the Commission, with one commissioner dissenting, upheld the removal, and Dr. McClelland has now appealed to this Court.
On an appeal to this Court from a Commission adjudication, we are required "to examine the record, not for the purpose of weighing the evidence and making a new determination, but rather for the purpose of determining whether the Commission exercised a reasonable discretion in making the findings. We may not substitute our judgment for that of the Commission and we must accept its findings if they are supported by evidence sufficient to convince a reasonable mind to a fair degree of certainty." Commonwealth of Pennsylvania, Department of Revenue v. State Civil Service Commission, 12 Pa. Commonwealth Ct. 400, 401, 316 A.2d 676, 677 (1974). It should be further noted that, the rules of the Commission, 4 Pa. Code § 105.15(a), impose upon the appointing authority (here the DPW) the duty to go forward in the establishment of the charges upon which its personnel action is based and in so doing to establish a prima facie case in justification of that action. Bleilevens v. State Civil Service Commission, 11 Pa. Commonwealth Ct. 1, 312 A.2d 109 (1973).
In initially considering the scope of the charges brought against Dr. McClelland, we must note that much of the evidence presented by the DPW during the course of the hearings concerned charges relating to conditions at Polk which were not ...