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FRANK FUSARO v. CIVIL SERVICE COMMISSION CITY PITTSBURGH AND CITY PITTSBURGH (12/02/74)

decided: December 2, 1974.

FRANK FUSARO, APPELLANT,
v.
CIVIL SERVICE COMMISSION OF THE CITY OF PITTSBURGH AND THE CITY OF PITTSBURGH, APPELLEES



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of In Re: Appeal of Frank Fusaro, No. SA 471 of 1971.

COUNSEL

Larry P. Gaitens, with him Lucchino, Gaitens & Hough, for appellant.

Eugene B. Strassburger, III, Executive Assistant City Solicitor, with him Mead J. Mulvihill, Jr., Deputy City Solicitor, for appellees.

Judges Wilkinson, Jr., Rogers and Blatt, sitting as a panel of three. Opinion by Judge Wilkinson.

Author: Wilkinson

[ 16 Pa. Commw. Page 2]

This appeal by Pittsburgh's former Street Lighting Division Engineer from an economic dismissal involves the proper application of Section 20.1 of the General Civil Service portion of the Second Class City Code, Act of June 20, 1947, P.L. 663, amending the Act of May 23, 1907, P.L. 206, 53 P.S. ยง 23454 (Act). The pertinent facts are that appellant, Frank Fusaro, an electrical engineer, had been employed by the City of Pittsburgh since April of 1968 as a "streetlighting engineer." His job consisted mainly of supervising the design, installation and operation of the City's street lighting facilities (made up of approximately 35,000 street lights) and administering various street lighting contracts.

[ 16 Pa. Commw. Page 3]

Early in November of 1970, appellant received a letter from the Director of the Department of Public Works stating, inter alia : "For reasons of economy it has been determined that it is necessary to terminate your employment with the City of Pittsburgh. Accordingly, I regret to inform you that your last working day will be November 20, 1970. . . ."

In due course, appellant filed a proper appeal with the Civil Service Commission of the City of Pittsburgh. After extensive hearings, the Commission, on May 26, 1971, found in favor of the City on the question of the validity of the economic basis of appellant's dismissal, and ordered that the "appeal of Frank Fusaro from his termination for economic reasons is denied." Appellant then took an appeal to the Allegheny County Court of Common Pleas. There, based on the record below, Judge Ross affirmed the decision of the Commission. The instant appeal to this Court followed.

Where the court below takes no additional evidence in its determination of an appeal from a Civil Service Commission, the scope of review of the Commonwealth Court is limited to evaluation of the record to determine whether the Commission abused its discretion or committed an error of law. Shannon v. Civil Service Commission, 4 Pa. Commonwealth Ct. 492, 287 A.2d 858 (1972). We are bound by the findings of fact of a Civil Service Commission where such findings are based on substantial evidence; we cannot and will not weigh the testimony and substitute our discretion for that of the Commission, insofar as they do not abuse their discretion. Gretton v. Pittsburgh, 344 Pa. 219, 25 A.2d 351 (1952); Williams v. Civil Service Commission, 9 Pa. Commonwealth Ct. 437, 306 A.2d 419 (1973), aff'd 457 Pa. 470, 327 A.2d 70 (1974).

There is clear and substantial evidence on the record to support the finding of the Commission that appellant's position was terminated for reasons of economy.

[ 16 Pa. Commw. Page 4]

We completely agree with the Commission and the court below that appellant did not sustain his burden of proof to show to the contrary. We hold that the Commission has ...


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