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JOEL M. VARNDELL v. COMMONWEALTH PENNSYLVANIA (04/08/80)

decided: April 8, 1980.

JOEL M. VARNDELL, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT



Appeal from the Order of the State Civil Service Commission in case of Joel M. Varndell v. The Pennsylvania Department of Public Welfare, No. 2503.

COUNSEL

Paul W. Brann, for petitioner.

Robert E. Kelly, Deputy Attorney General, with him Allen C. Warshaw, Deputy Attorney General, and Edward G. Biester, Jr., Attorney General, for respondent.

Earl R. Dryer, Assistant Attorney General, for State Civil Service Commission.

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

Author: Wilkinson

[ 50 Pa. Commw. Page 350]

An order of the Pennsylvania State Civil Service Commission (Commission) sustaining the decision of the Department of Public Welfare (Department) to discharge petitioner from his employment as a Mental Retardation Aide I at Selinsgrove Center is the subject of this appeal.

Petitioner was discharged from his position at Selinsgrove Center, an institution operated by the Department, on the charge that on June 23, 1978 petitioner rubbed his hand in a resident's nose and slapped him about the face at least three times without provocation or extenuating circumstances. Petitioner's discharge was effective June 29, 1978. Under Section 807 of the Civil Service Act, Act of August 5, 1941, P.L. 752, as amended, 71 P.S. § 741.807, a regular employee in the classified service shall be discharged from employment only for just cause. Upon petitioner's appeal, the Commission held a hearing and on April 28, 1979 entered a Final Adjudication and Order finding just cause for the dismissal and sustaining the termination of petitioner's employment.

It is argued before this Court that (1) petitioner was not sufficiently informed of the charges against him and thereby denied due process, (2) the Commission did not apply the correct legal standard to petitioner's case, and (3) there was not substantial evidence to support the order of the Commission.

[ 50 Pa. Commw. Page 351]

The impetus for much of petitioner's argument is the Department's regulations regarding patient abuse in institutions operated by the Department. Those regulations were published in the Pennsylvania Bulletin on October 29, 1977, 7 Pa. B. 3199 et seq. (to be codified in 55 Pa. Code §§ 8488-8489.6) and took effect November 29, 1977. The regulations include rules relating to employees working at the institutions, list the types of behavior which would be considered patient abuse, group abuse into three classes, and detail the personnel actions (including dismissal) to be taken upon a finding of an incident of abuse. Regulation § 8489.5.1 defines the categories of abuse, including:

Minor Abuse : Any act or omission which may cause or causes non-serious emotional or physical harm or injury to the patient/resident, where it is reasonable to believe that harm or injury would result.

Serious Abuse : Any action or omission which may cause or causes serious emotional or physical harm or injury, where it is reasonable to ...


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