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PAUL W. SMITH v. COMMONWEALTH PENNSYLVANIA (01/26/77)

decided: January 26, 1977.

PAUL W. SMITH
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD. PAUL W. SMITH, APPELLANT



Appeal from the Order of the State Civil Service Commission in case of Paul W. Smith v. Liquor Control Board, No. 1781.

COUNSEL

Germaine Ingram, with her Harold I. Goodman, for appellant.

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

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

Author: Crumlish

[ 28 Pa. Commw. Page 338]

Paul W. Smith, who has at times also identified himself as Obokka Kalamann-Bey (Appellant), appeals the order of the State Civil Service Commission (Commission) which affirmed the Liquor Control Board's (LCB) removal of him as liquor store clerk, probationary status. The facts as found by the Commission are as follows:

Appellant was removed effective Friday, October 31, 1975, from his position as probationary clerk for failure to perform to an acceptable degree of competence the duties of such a clerk and insubordinate behavior and improper attitude. The Commission further found that Appellant disrupted training sessions by objecting to the interpretation of the training manager as to the meaning of sick leave; objecting to time off for family death; and objecting to regulations prohibiting outside employment. And finally, it was found as fact that Appellant was denied a name tag reading Obokka notwithstanding the fact that the name on his employment application was listed as "Paul Smith."

Appellant contended at hearing that the dismissal was based upon discriminatory and non-merit factors; however, the Commission concluded as a matter of law to the contrary.

Two issues are raised by Appellant in the instant appeal, to wit:

1. Does the record in this case support an adjudication that Appellant was properly removed from his position as a probationary employee with LCB for reasons which are job-related and do not involve non-merit factors?

2. Was Appellant improperly precluded from placing into the record an affidavit which showed that the reasons given by LCB for his removal were pretextual?

[ 28 Pa. Commw. Page 339]

The law relative to our review of a Commission adjudication of removal of a probationary employee was most ably set out by Judge Rogers in Cunningham v. State Civil Service Commission, 17 Pa. ...


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