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JAMES L. MCCANN v. COMMONWEALTH PENNSYLVANIA (01/16/75)

decided: January 16, 1975.

JAMES L. MCCANN, APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, JAMES D. BARGER, COMMISSIONER, PENNSYLVANIA STATE POLICE, APPELLEES



Appeal from the Order of the Commissioner of the Pennsylvania State Police in case of Order of Demotion 74-4A, James L. McCann, dated March 13, 1974.

COUNSEL

Wallace C. Worth, Jr., with him Jeffrey R. Dimmich, and Worth & O'Hara, for appellant.

J. Andrew Smyser, Deputy Attorney General, with him Benjamin Lerner, Deputy Attorney General, and Israel Packel, Attorney General, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Mencer, Rogers and Blatt. Judge Wilkinson, Jr. did not participate. Opinion by Judge Mencer.

Author: Mencer

[ 17 Pa. Commw. Page 129]

In McCann v. Barger, 11 Pa. Commonwealth Ct. 517, 314 A.2d 35 (1974), we held that the action of the Commissioner of the Pennsylvania State Police, reducing in rank Lieutenant James L. McCann (McCann) by a personnel order, without court-martial, was contrary to Section 205(e) of The Administrative Code of 1929, as amended, Act of April 9, 1929, P.L. 177, 71 P.S. ยง 65(e) (Supp. 1974-1975). We remanded the record to the Commissioner for such further action in compliance with law as the Commissioner should deem appropriate.

On January 28, 1974, the Commissioner named a three-officer Court-Martial Board and, on January 30, 1974, McCann was served with the following "Charge and Specifications" constituting the basis of the court-martial preferred against him:

"PREFERRED AGAINST:

James L. McCann

Troop "S"

Milesburg, Pennsylvania

"DATE PREFERRED:

25 January 1974

"CHARGE:

It is charged that James L. McCann does not lawfully and properly hold the rank of Lieutenant and that his lawful and proper rank is that of Trooper.

"SPECIFICATION 1:

On February 10, 1971, James McCann's lawful and proper rank was that of Trooper.

"SPECIFICATION 2:

On February 9, 1971, by Personnel Order 71-3, effective February 11, 1971, James McCann was promoted temporarily to the rank of Sergeant.

[ 17 Pa. Commw. Page ...


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