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RICHARD N. HARP v. COMMONWEALTH PENNSYLVANIA (01/24/77)

decided: January 24, 1977.

RICHARD N. HARP
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD. RICHARD N. HARP, APPELLANT



Appeal from the Order of the Pennsylvania Civil Service Commission in case of Richard Harp v. Pennsylvania Liquor Control Board, Appeal No. 1759.

COUNSEL

Robert A. Polin, with him Talarico, Polin, Sulman and Lilian, for appellant.

David Shotel, Assistant Attorney General, with Harry Bowytz, Assistant Attorney General, and Robert P. Kane, Attorney General for appellee.

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

Author: Rogers

[ 28 Pa. Commw. Page 319]

In November 1975, the appellant, Richard N. Harp, a Liquor Store Manager III, with regular civil service status, was in charge of a state liquor store located at Audubon, Montgomery County. The other state employes located at the store were a co-manager and two clerks. On November 19, 1975 the co-manager and one of the clerks came upon an opened case of one-half pint whiskey bottles in which they found four opened bottles, two of which were empty, one half full and the fourth containing about an ounce of whiskey. Later the same day the second clerk saw the case and the four opened bottles. The co-manager and clerks, in accordance with Liquor Control Board directives, notified superiors who instructed them to reseal the case leaving the four opened bottles in place. On November 20, 1975 three supervisors came to the store, examined the case of whiskey and found that the four opened bottles were gone and that four full and unopened bottles had been placed in the case.

Mr. Harp arrived at the store on November 19, 1975 after the case with the four opened bottles had been discovered. He rescheduled the working hours of the other employes so that he was alone in the store from 7 P.M. to 9 P.M. on November 19, 1975. There is no direct evidence that Mr. Harp opened the four bottles and consumed their contents, or that Mr. Harp replaced the opened bottles with full bottles from another source. If the Liquor Control Board had evidence that four bottles in the store's inventory were missing, it failed to produce it.

As a result of the incident just described, the Liquor Control Board suspended Mr. Harp as of November 20, 1975 "pending the completion of an investigation . . . of [s]uspected pilferage and consumption of alcoholic beverages on the store premises." On

[ 28 Pa. Commw. Page 320]

December 17, 1975 the Liquor Control Board removed Mr. Harp from his position of Liquor Store Manager III, effective December 19, 1975. The removal action was based on the following charges:

1) Misappropriation of Commonwealth merchandise; in that on or about Wednesday, November 19, 1975, Mr. Harp removed from Store #4637, 4 bottles of Code 349, Canadian Club Whiskey (1/2 pint).

2) Failure to properly discharge the duties and responsibilities incumbent upon a ...


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