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FRANK R. MAGNELLI v. COMMONWEALTH PENNSYLVANIA (12/22/80)

decided: December 22, 1980.

FRANK R. MAGNELLI, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA STATE CIVIL SERVICE COMMISSION AND COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, RESPONDENTS



Original jurisdiction in the case of Frank R. Magnelli v. Pennsylvania State Civil Service Commission and Pennsylvania Liquor Control Board.

COUNSEL

Walter K. Swartzkopf, Jr., for petitioner.

Barbara G. Raup, Assistant Attorney General, with her Harry Bowytz, Chief Counsel, for respondent, Pennsylvania State Civil Service Commission.

David Shotel, Assistant Attorney General, with him Kenneth W. Makowski, Acting Chief Counsel, for respondent, Pennsylvania Liquor Control Board.

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

Author: Williams

[ 55 Pa. Commw. Page 532]

In 1976, petitioner Frank R. Magnelli filed in this Court an original action in mandamus, naming as respondents the State Civil Service Commission (Commission) and the Pennsylvania Liquor Control Board (LCB). At the time of bringing the action the petitioner was employed by LCB as an Enforcement Officer III.

The petitioner's central allegation is that certain other persons holding higher level positions as Enforcement Officers with LCB were promoted to those positions without examinations as required by the Civil Service Act.*fn1 The injury complained of by the petitioner is that, as a result of the allegedly unlawful promotions, qualified persons such as himself have been denied fair consideration for promotion to

[ 55 Pa. Commw. Page 533]

    those higher positions. Indeed, the petitioner alleges that LCB has a systematic scheme tailored to exclude qualified applicants from competing for the positions in question. The relief sought is the removal of one particular person from one of the positions and the holding of examinations for three positions.

In January 1977, the Commission and LCB filed preliminary objections to the action; in addition, the Commission filed a motion to dismiss. This Court overruled the objections and the motion.*fn2

This case is instantly before us on a motion for summary judgment filed by the petitioner. In contesting that motion the respondents answer first that there are additional facts "which bear upon the questions raised by petitioner." By that we assume the respondents mean there exist genuine issues as to material facts, thus precluding summary judgment in petitioner's favor.*fn3

However, more critical to this case are the facts underlying the respondents' second argument: on August 29, 1977, the petitioner was discharged from employment with the LCB on charges of misconduct. That dismissal was upheld by the Commission upon a finding that the petitioner had violated rules by engaging in outside employment and by using his sick leave to practice law. That order of the Commission was affirmed by this Court in ...


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