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decided: December 11, 1979.


Appeal from the Order of the State Civil Service Commission in case of Frank R. Magnelli v. Pennsylvania Liquor Control Board, Appeal No. 2304.


Walter K. Swartzkopf, Jr., for petitioner.

Kenneth W. Makowski, Acting Chief Counsel, for respondent.

Judges Crumlish, Jr., Wilkinson, Jr. and Craig, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 47 Pa. Commw. Page 598]

Frank R. Magnelli appeals from an adjudication and order of the State Civil Service Commission affirming his dismissal from the Pennsylvania Liquor Control Board (Board) where he had been employed as an Enforcement Officer III.

The reasons given by the Board for Magnelli's dismissal are set forth in his letter of discharge:

Gross misconduct as employee of the Board by means of:

(1) Insubordination.

(2) Misconduct amounting to violation of law, rules or lawful departmental orders.

[ 47 Pa. Commw. Page 599]

(3) Scandalous or disgraceful conduct while on or off duty which may bring the service of the Commonwealth into disrepute.

The letter detailed three provisions of the Handbook for Enforcement Officers which Magnelli had allegedly violated: (1) engaging in the gainful practice of law while employed by the Board;*fn1 (2) utilizing his sick leave on five separate occasions to engage in the practice of law;*fn2 and (3) bringing malicious, unsubstantiated charges in bad faith against the Chairman of the Board accusing him of a breach of his official duty and a violation of the Pennsylvania Crimes Code.*fn3

Magnelli, although admitting he abused his sick leave privilege for the purpose of practicing law, contends

[ 47 Pa. Commw. Page 600]

    that the real reason for his dismissal had nothing at all to do with practicing law or abusing sick leave, but rather a personal vendetta of the Board against him resulting from a letter he wrote to the Justice Department alleging that the Chairman of the Board failed to properly execute his duties in connection with the approval of a liquor license. Thus, he contends that his discharge was discriminatory and was based solely on non-merit factors, an impermissible basis for discharge under Section 905.1 of the Civil Service Act.*fn4 In view of the excellent work record which he maintained over an 18-year period while in the employ of the Board, Magnelli contends that the punishment given him by the Board was too harsh and a more appropriate penalty would have been the issuance of a warning, or at most a suspension.

On an appeal from an adjudication by the State Civil Service Commission, our scope of review is limited to a determination of whether or not the constitutional rights of the appellant have been violated, an error of law has been committed, or a necessary finding of fact was unsupported by substantial evidence. Hence, it is our duty to examine the record for the purpose of determining whether or not the Commission exercised reasonable discretion in rendering its decision and we will not weigh the evidence and substitute our judgment for that of the Commission. Philadelphia County Board of Assistance v. Cahan, 24 Pa. Commonwealth Ct. 543, 358 A.2d 440 (1976).

While the thrust of Magnelli's argument is that he was discharged in retaliation for writing what he believed to be a confidential letter to the Attorney General questioning the propriety of a high-level superior's conduct in a particular matter, this is not one of the grounds for discharge listed in the Commission's

[ 47 Pa. Commw. Page 601]

    adjudication. The subsequent investigation which his letter triggered, although highly unusual in nature, is not now before this Court and our inquiry is focused upon those charges which the Commission expressly found to constitute "just cause" for dismissal*fn5 in its affirmance of Magnelli's dismissal, to wit: (1) that he engaged in gainful employment aside from his position with the Board, which is expressly prohibited in the Handbook for Enforcement Officers; and (2) had used his sick leave to engage in the proscribed outside employment. The narrow issue confronting us is thus whether the record supports the Commission's adjudication that Magnelli was properly removed from his position with the Board for the aforementioned reasons.

The fundamental controlling premise underlying employment with the classified service is, as the Civil Service Act instructs, that the merit concept prevails. Speaking to this concept in civil service employment, Judge Mencer wrote for this Court in Department of Transportation v. Desikachak, 22 Pa. Commonwealth Ct. 507, 508-09, 349 A.2d 796, 797 (1976), that the "concept requires 'personnel actions' of the Commonwealth to be based upon merit criteria relevant to the proper execution of the employee's duties. The criteria must be job-related and in some logical and rational manner touch upon competency and ability."

Our examination of the record leads us to but one conclusion, viz: that the Commission properly exercised its functions in the administrative framework and must be affirmed. Clearly, the grounds for removal proffered by the Commission and admitted by Magnelli are sufficient to constitute "just cause" under Section 807 of the Act. Undoubtedly, the Commission's

[ 47 Pa. Commw. Page 602]

    findings that Magnelli engaged in the outside practice of employment and abused his sick leave privilege to do so are job-related and definitely touch upon his competency and ability. As such, they represent serious misconduct sufficient to support the Commission's order.

Accordingly, we


And Now, this 11th day of December, 1979, the order of the State Civil Service Commission dated August 24, 1978, dismissing the appeal of Frank R. Magnelli from his removal as Enforcement Officer III is hereby affirmed.



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