Appeal from the Order of the Pennsylvania Civil Service Commission in case of Appeal of: Raymond P. Wasilak, No. 1703.
Robert A. Polin, with him Talarico, Polin, Sulman and Lilian, for appellant.
James P. Deeley, Assistant Attorney General, with him Harry Bowytz, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.
President Judge Bowman and Judges Mencer and Blatt, sitting as a panel of three. Opinion by Judge Mencer.
[ 27 Pa. Commw. Page 172]
This is an appeal by Raymond P. Wasilak (Wasilak) from an order of the State Civil Service Commission (Commission), which ordered Wasilak "reinstated to his position as Liquor Store Manager II, regular status, without compensation for the time lost between July 26, 1975, and the date he returns to duty which shall be within five days after he provides the Pennsylvania Liquor Control Board with a medical certificate that he will be physically capable of performing the duties of [his position]."
On Saturday, July 26, 1975, Wasilak apparently reported for work by throwing open the doors of the Pennsylvania State Liquor Store No. 0209, staggering towards the counter and facetiously demanding service in an incontinent manner by asking, "What the hell do you have to do to get waited on in this store?" It was alleged his eyes were bloodshot, his speech was slurred and incoherent, and he was unsteady on his feet. It was also alleged that the effect of this conduct on store patrons was, not surprisingly, less than salutary. Because of his apparent conclusion that Wasilak was intoxicated, the store's Manager III felt Wasilak was not in a position to complete his scheduled work shift. Later that day Wasilak was suspended on the charge of reporting for duty in a condition unfit to perform his duties, despite prior warnings.*fn1
[ 27 Pa. Commw. Page 173]
The appointing authority removed Wasilak from his position, effective September 3, 1975. Wasilak appealed to the Commission which, in an adjudication dated January 16, 1976, accepted testimony offered by Wasilak that his staggering gait was due to the irreversible degenerative effects of alcoholism and that he was not intoxicated on the day in question. Concluding that the appointing authority had not supported its charges with substantial and credible evidence, the Commission ordered Wasilak reinstated but denied back pay. The sole issue in this case is whether the Commission abused its discretion by denying back pay.
The Civil Service Act*fn2 (Act) grants the Commission discretionary authority to award back pay.*fn3 Our scope of review is strictly limited to determining whether that discretion has been abused or an error of law has been committed. Baron v. Civil Service Commission, 8 Pa. Commonwealth Ct. 6, 301 A.2d 427 (1973).
Unfortunately, the Commission's adjudication does not indicate on what evidence, if any, it relied in denying back pay.*fn4 This information is necessary if this Court is to judge whether in the instant case there has been an abuse of discretion.
It is appropriate to restate here what we wrote in State Real Estate Commission v. Bewley, 1 Pa. Commonwealth Ct. ...