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DEPARTMENT JUSTICE v. FRANK V. BRINSER (09/21/76)

decided: September 21, 1976.

DEPARTMENT OF JUSTICE, APPELLANT
v.
FRANK V. BRINSER, III, APPELLEE



Appeal from the Order of the Pennsylvania Civil Service Commission in case of Frank V. Brinser, III v. Department of Justice, No. 1675.

COUNSEL

Howard M. Levinson, Deputy Attorney General, with him Lawrence Silver, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellant.

James G. Morgan, Jr., with him Hepford, Zimmerman & Swartz, for appellee.

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

Author: Crumlish

[ 26 Pa. Commw. Page 256]

The Department of Justice (Appellant) appeals an adjudication of the Civil Service Commission (Commission) which modified a decision of the Attorney General removing Frank V. Brinser, III (Appellee) from his position as Drug Investigator I, regular status. We reverse.

Appellee was removed from his position with the Bureau of Drug Control as a result of a confrontation between himself and Agent Glendon.*fn1 After Appellee's

[ 26 Pa. Commw. Page 257]

    removal hearing, the Commission found that there was not "just cause" for his removal.*fn2 This adjudication overruled a decision of the Attorney General; however, the Commission did find there was good cause for suspension and accordingly modified the Attorney General's decision.*fn3

The Commission's adjudication was tousled. While it stated the evidence was insufficient to warrant removal and while it clearly ordered reinstatement, it also noted that the evidence was sufficient to suspend Appellee for good cause. This allusion to a suspension was lamentable because it implied that the suspension was being imposed for the very conduct censured by the Attorney General.

In Baron v. Civil Service Commission, 8 Pa. Commonwealth Ct. 6, 8, 301 A.2d 427, 428 (1973), "[t]he Commission found that the evidence presented by DPW was not 'sufficiently substantial to sustain removal of appellant [Dr. Baron] from his position. . . .'", but it also found that "[t]he evidence of the appointing authority supports a misuse of the medical assistance program in a minor degree sufficient to justify a disciplinary action of suspension of appellant as Psychiatric Physician II."

Further, what was before us in Baron was Dr. Baron's appeal "to this Court ...


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