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GILBERT STRAUSS v. CIVIL SERVICE COMMISSION PHILADELPHIA (02/23/79)

decided: February 23, 1979.

GILBERT STRAUSS, APPELLANT
v.
CIVIL SERVICE COMMISSION OF PHILADELPHIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Civil Service Commission of Philadelphia v. Gilbert Strauss, No. 1842 June Term, 1976.

COUNSEL

William P. James, with him Louis Lipschitz, for appellant.

Julian Wessel, Assistant City Solicitor, with him Gayle R. Smith, Assistant City Solicitor, and Sheldon L. Albert, City Solicitor, for appellee.

Judges Crumlish, Jr., DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 40 Pa. Commw. Page 561]

Effective December 23, 1973, the Philadelphia Fire Department (Department) dismissed Gilbert Strauss

[ 40 Pa. Commw. Page 562]

    from his position as a city fireman for the following reasons: (1) being at home during his regularly scheduled tour of duty on May 11, 16, 22 and 29 of 1973 in violation of specification 4:01 of the Department Discipline Directive (Directive); (2) abruptly departing from a departmental inquiry into his activities before that inquiry was completed in violation of Section 10-110 of the Philadelphia Home Rule Charter (Charter), 351 Pa. Code § 10-110; (3) disregarding a direct order from the Deputy Fire Commissioner to remain until the completion of the departmental inquiry in violation of specification 4:07 of the Directive; (4) being arrested and held for court; and (5) engaging in an unauthorized remunerative occupation, namely, the extensive buying and selling of art objects for substantial profit in violation of specification 5:19 of the Directive, while on regularly scheduled tours of duty and while off duty in a paid status due to an injury.

Strauss appealed his dismissal to the Philadelphia Civil Service Commission (Commission), which denied his appeal, concluding that Strauss's refusal to comply with Section 10-110 of the Charter, his departure from the investigative hearing in spite of an order to remain, his violation of the type of physical activity one can perform while on no-duty status*fn1 and his active pursuit of outside business transactions for substantial profit without departmental knowledge or approval as required, constituted just cause for dismissal.

Strauss then appealed to the Philadelphia County Court of Common Pleas, Civil Division, which, on July 13, 1977, denied his appeal.

Our scope of review is limited by Section 8(b) of the Local Agency Law, Act of December 2, 1968, P.L.

[ 40 Pa. Commw. Page 5631133]

, formerly 53 P.S. § 11308(b).*fn2 We must affirm the adjudication below unless (1) constitutional rights have been violated (2) there was non-compliance with provisions of the Local Agency Law in the proceeding before the Commission (3) an error of law has been committed or (4) the findings of the Commission are not supported by substantial evidence. DiCiacco v. ...


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