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decided: June 29, 1979.


Appeal from the Order of the State Civil Service Commission in case of Dr. Ulpiano F. Lopez v. Retreat State Hospital, Department of Public Welfare, Appeal No. 2229.


Joseph J. Musto, with him Griffith, Aponick & Musto, for petitioner.

Robert E. Kelly, Assistant Attorney General, for respondent.

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

Author: Wilkinson

[ 43 Pa. Commw. Page 632]

Petitioner seeks review of a decision by the State Civil Service Commission (Commission) affirming his removal from the position of Assistant Superintendent for Clinical Services, Mental Health, regular status at Retreat State Hospital pursuant to Section 807 of the Civil Service Act.*fn1 We affirm.

The incident leading to his removal was his alleged action which "result[ed] in persons attending a meeting in the Superintendent's Office, Retreat State Hospital, on the morning of August 5, 1976, to imbibe without their knowledge quantities of HALDOL, a psychotropic drug." The meeting above mentioned was a regular consultation of staff physicians with other medical doctors from the community to discuss the treatment of patients.

[ 43 Pa. Commw. Page 633]

Following the August 5, 1976 meeting several persons in attendance became ill.*fn2 Approximately eight months following this meeting Dr. Robert Murphy, a colleague of petitioner's, told the Hospital Superintendent that the petitioner had admitted the alleged misconduct to him. On the basis of this information the Hospital Superintendent relieved petitioner of his duties effective June 10, 1977.

Pursuant to petitioner's timely request, the Commission conducted a hearing into the propriety of the subject dismissal on August 10, 1977. From the adverse determination of the Commission petitioner presents the instant petition for review.

Petitioner first contends that there is not substantial evidence to support the Commission's adjudication. In its discussion of the testimony, the Commission stated, "We believe the credible evidence in this case is that of the appointing authority. Our reasonable minds are convinced that the evidence of the appointing authority supports the charges given for removal of [petitioner]." We agree. The following summary by the Commission of the testimony supporting petitioner's removal is indicative:

The testimony shows [petitioner] had a dislike for Dr. Kafrissen [a community physician]. [Petitioner] used vulgar and obscene language in referring to Dr. Kafrissen. [Petitioner] confided

[ 43 Pa. Commw. Page 634]

    to Dr. Murphy that he, the [petitioner], had placed Haldol in the coffee on August 5, 1976. . . . Dr. Murphy wrestled with his conscience and considered his friendship with [petitioner] before revealing this information to the Hospital Superintendent. Testimony of some of those who attended the meeting corroborate by their illness, the [petitioner's] statement. . . .

Under the circumstances we must affirm the Commission's factual findings, supported as they are by substantial evidence. Henley v. State Civil Service Commission, 39 Pa. Commonwealth Ct. 286, 395 A.2d 330 (1978).

Petitioner also raises a due process argument alleging he was not sufficiently informed of the charges against him. In this context due process is satisfied when the notice of removal is framed in a manner which enables the employee to discern the nature of the charges and adequately prepare a defense; the certainty of a bill of indictment is not necessary but the notice must inform the employee with reasonable certainty the substance of the charges against him. Benjamin v. State Civil Service Commission, 17 Pa. Commonwealth Ct. 427, 332 A.2d 585 (1975).

In the first letter from the Hospital Superintendent dated June 6, 1977, petitioner was generally informed of the charges against him without any specification as to date, time, and place of the alleged misconduct. By letter dated August 5, 1977, the material deficiencies in the previous notice were corrected although the date of the relevant clinical meeting was improperly noted as August 6 rather than August 5, 1976. The appropriate date was furnished in a final letter dated August 9, 1977.

We might be concerned if the error in identifying the meeting date appeared to be of some importance to the preparation of petitioner's defense, especially

[ 43 Pa. Commw. Page 635]

    in light of its eleventh hour correction. We learn from the record, however, that the clinical meetings of which August 5, 1976 was one were regularly scheduled once-a-week gatherings making the error in dates readily apparent to petitioner. It was further revealed, in the testimony of the Hospital Superintendent, that a discussion with petitioner concerning the charges had been held well before the Commission's hearing. Our review of the record confirms the Commission's conclusion that petitioner "was given specific and definite notice of the event that was the cause of his removal. [Petitioner] had ample opportunity to prepare his defense and answer the charges given for his removal."

Accordingly, we will enter the following


And Now, June 29, 1979, the order of the State Civil Service Commission at Appeal No. 2229 dated January 10, 1978, is hereby affirmed.



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