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GERARD J. CUNNINGHAM v. COMMONWEALTH PENNSYLVANIA (02/11/75)

decided: February 11, 1975.

GERARD J. CUNNINGHAM, 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 Gerard J. Cunningham, Appeal No. 1435.

COUNSEL

Mark B. Segal, with him Harold I. Goodman, for appellant.

Howard M. Holmes, Assistant Attorney General, with him Michael von Moschzisker, Deputy Attorney General, and Israel Packel, Attorney General, for appellee.

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

Author: Rogers

[ 17 Pa. Commw. Page 376]

Gerard J. Cunningham here appeals an adjudication and order of the State Civil Service Commission sustaining his removal from the position of Assistance Technician Trainee, probationary status, with the Delaware County Board of Assistance.

[ 17 Pa. Commw. Page 377]

Appellant's probationary status employment began March 23, 1973. On May 9, 1973, by letter from the Department, he was removed from his job effective May 24, 1973 for "[t]otally unsatisfactory work performance, unacceptable work habits, and a total disregard for the dependability factor." Mr. Cunningham filed a timely appeal to the State Civil Service Commission alleging discrimination as the basis for his removal. After hearing, the Commission sustained the Department's action and Mr. Cunningham has appealed to this court.

We are limited in our review to the determinations of whether the Commission's adjudication is in accordance with law, constitutional rights were observed and necessary findings are supported by substantial evidence. Fleming v. State Civil Service Commission, 13 Pa. Commonwealth Ct. 421, 319 A.2d 185 (1974).

Section 804 of the Civil Service Act, Act of August 5, 1941, P.L. 752, as amended, 71 P.S. § 741.804 (Supp. 1974-1975) (Act), provides that the "appointing authority may remove an employe from the classified service at any time before the expiration of probationary period." The basis for such removal is set forth in Section 603(a) of the Act, as amended, 71 P.S. § 741.603(a) (Supp. 1974-1975): "At any time during his probationary period, the appointing authority may remove an employe if in the opinion of the appointing authority the probation indicates that such employe is unable or unwilling to perform his duties satisfactorily or that his dependability does not merit his continuance in the service. . . ."

Thus, the probationary status civil service employe does not enjoy the job security afforded persons on regular status, who may be removed only for just cause.*fn1 However, administrative and judicial review is available to a probationary status employe who has received notice of

[ 17 Pa. Commw. Page 378]

    removal when, as here, he alleges that his removal was based upon discrimination "because of political or religious opinions or affiliations because of labor union affiliations or because of race, national origin or other non-merit factors." Section 905.1, as amended, 71 P.S. § 741.905(a) (Supp. 1974-1975). If the probationary status employe fails to sustain his charge of discrimination, his dismissal stands without consideration of the validity of the determination of unsatisfactory work performance. Hunter v. Jones, 417 Pa. 372, ...


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