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JOSEPHINE SILVIA v. PENNHURST CENTER (12/04/81)

decided: December 4, 1981.

JOSEPHINE SILVIA, PETITIONER
v.
PENNHURST CENTER, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT



Appeal from the Order of the State Civil Service Commission in case of Josephine Silvia v. Pennhurst Center, Department of Public Welfare, No. 2982.

COUNSEL

William D. Murphy, with him Lawrence Sager, Sager & Sager, for petitioner.

Marc G. Brecher, Deputy Attorney General, with him John O. J. Shellenberger, Deputy Attorney General of Eastern Region, and LeRoy S. Zimmerman, Attorney General, for respondent.

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

Author: Macphail

[ 63 Pa. Commw. Page 77]

The subject of this appeal is an order of the Pennsylvania State Civil Service Commission (Commission) sustaining the decision of the Department of Public Welfare (Department) to discharge Petitioner from her employment as a Mental Retardation Aide II, permanent status, at Pennhurst State School.

Josephine Silvia (Petitioner), had been employed at Pennhurst for the last 25 years. On December 17, 1979, Petitioner was notified by letter of her dismissal. The discharge was based on patient abuse. Specifically, it is alleged that on November 6, 1979, Petitioner yelled and screamed at a patient, slapped him forcefully across the chest a number of times with an open hand and pushed him out of a door with a broom. Petitioner appealed Pennhurst's discharge action to the Commission whereupon a hearing was held and on December 2, 1980, a Final Adjudication and Order was entered dismissing the Petitioner's appeal and finding just cause for her termination.

At the hearing, there was a substantial dispute among the witnesses as to what occurred on November 6. The principal witness against Petitioner was a psychiatric nurse who testified that her attention was called to an altercation between the Petitioner and a patient when she heard some loud yelling. Upon arriving at the scene, the nurse testified that she saw Petitioner push the patient with a broom into a hallway and slap him forcefully at least ten times with an open hand across the chest. Petitioner testified that she had been struck by the patient and did not strike him but was easing him into the hallway in

[ 63 Pa. Commw. Page 78]

    accordance with the usual procedures where a patient becomes abusive. Other witnesses were called by Pennhurst and Petitioner to corroborate one version or the other of what happened, but the nurse, Petitioner and the patient were the only eyewitnesses. Pennhurst has a rule that at no time may an aide strike or physically threaten a patient. The Commission found that the testimony of the witnesses for the appointing authority was the more credible and concluded that Petitioner had abused the patient which constituted just cause for her discharge by Pennhurst.*fn1

On appeal to this Court, an adjudication of the State Civil Service Commission shall be affirmed unless it appears that such was not in accordance with the law, that any finding of fact necessary to support such adjudication is not supported by the evidence, or that the constitutional rights of the appellant have been violated. Department of Transportation v. State Civil Service Commission, 5 Pa. Commonwealth Ct. 263, 290 A.2d 434 (1972). Substantial evidence needed to support a finding of the State Civil Service Commission is the relevant evidence that a reasonable mind, without weighing the evidence or substituting its judgment for that of the Commission, might accept as adequate to support the conclusion reached. Zilion D. Rumberger v. Department of Justice, 41 Pa. Commonwealth Ct. 592, 399 A.2d 1169 (1979). "Judging issues of credibility and resolving evidentiary conflicts are functions of the Commission and not this Court." Varndell v. Department of Public Welfare, 50 Pa. Commonwealth Ct. 349, 353, 413 A.2d 11, 14 (1980). This Court will not weigh, but

[ 63 Pa. Commw. Page 79]

    only examine the evidence before it and will not substitute its judgment for that of the Commission. Gibson v. Department of Public Welfare, 35 ...


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