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MALCOLM H. MCVICKAR v. COMMONWEALTH PENNSYLVANIA (07/18/78)

decided: July 18, 1978.

MALCOLM H. MCVICKAR, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT



Appeal from the Order of the Department of Transportation in case of Appeal of Malcolm H. McVickar, No. 2 of 1976.

COUNSEL

John M. Gallagher, Jr., with him Jack Brian, and Richard, Brian, DiSanti & Hamilton, for petitioner.

Frank A. Fisher, Jr., Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for respondent.

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

Author: Disalle

[ 36 Pa. Commw. Page 562]

The petition for review filed in this case requests that this Court review a decision of the Department of Transportation (PennDOT) Personnel Hearing Board. The Board sustained a decision to suspend Malcolm H. McVickar (Petitioner) from his position for 5 days.

The Petitioner is a patronage employe working for PennDOT. His position is held under neither a labor agreement nor the Civil Service Act. On January 22, 1976, the Petitioner was informed by the Deputy Secretary for Highway Administration that he was suspended for 5 days for working at another job during hours for which he was being paid by PennDOT.

Upon receiving notice of his suspension, the Petitioner demanded a hearing before PennDOT's Personnel Hearing Board.*fn1 This request was granted and

[ 36 Pa. Commw. Page 563]

    a hearing was conducted on August 4, 1976. The Board took testimony from the parties involved and made findings of fact and conclusions of law sustaining the suspension of the Petitioner. Thereafter, this petition for review was filed.

The Petitioner argues that the Board's decision is in violation of his due process rights and not supported by substantial evidence. We do not reach the merits of Petitioner's contentions because the determination made by the PennDOT Personnel Hearing Board that Petitioner's suspension should be sustained does not constitute an appealable "adjudication" within the definition of the Administrative Agency Law (Act), Act of June 4, 1945, P.L. 1338, as amended, 71 P.S. ยง 1710.1 et seq.

In Manheim Township School District v. Board of Education, 1 Pa. Commonwealth Ct. 627, 276 A.2d 561 (1971), this Court enunciated the principle that Article V, Section 9 of the Pennsylvania Constitution which provides for the right of appeal "from an administrative agency to a court of record or an appellate court" does not apply to actions of an administrative agency which are not adjudications or judicial in ...


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