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CIVIL SERVICE COMMISSION PHILADELPHIA v. MELVIN BANKS (03/11/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 11, 1982.

CIVIL SERVICE COMMISSION OF PHILADELPHIA, APPELLANT
v.
MELVIN BANKS, APPELLEE

Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Melvin Banks v. Civil Service Commission of the City of Philadelphia, No. 1442 April Term, 1978.

COUNSEL

Jonathan K. Walter, with him Margaret A. Browning, and Louis Wilderman, Meranze, Katz, Spear & Wilderman, for appellee.

Mark Aronchick, Assistant City Solicitor, with him Richard S. Kohn, Assistant City Solicitor, Judith N. Dean, Deputy City Solicitor, and Alan J. Davis, City Solicitor, for appellant.

Judges Mencer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Mencer. Judge Palladino did not participate in the decision in this case.

Author: Mencer

[ 65 Pa. Commw. Page 272]

Melvin Banks was employed as an Equipment Operator I for the City of Philadelphia Water Department on February 14, 1974, when a motor vehicle struck the barricade on which he was leaning. Since that time, Banks has regularly complained of back pain, although the many objective tests given Banks have proved negative. Banks spent much of 1974 and

[ 65 Pa. Commw. Page 273]

    nearly the entire years 1975, 1976, and 1977 on injured-on-duty status (IOD). During a portion of this time period, he was employed as a janitor for Temple University, and his janitorial duties included mopping, sweeping, and emptying trash containers.

In March of 1976, while working at Temple University, Banks injured his wrist. This injury was not reported to the City of Philadelphia. However, Banks filed a workmen's compensation claim against Temple University and, during the investigation of this claim, it was discovered that Banks was working for the City. Temple then notified the City of Banks' employment at Temple.

Upon receipt of this information, the City of Philadelphia dismissed Banks, alleging violation of Civil Service Commission Regulation 33.028,*fn1 which prohibits outside employment while receiving disability benefits from the City of Philadelphia.

Banks appealed the dismissal to the Civil Service Commission of the City of Philadelphia (Commission) which denied his appeal and affirmed his dismissal. He appealed from the Commission's order to the Court of Common Pleas of Philadelphia County which sustained his appeal and reversed the Commission. This appeal followed.

Our scope of review here is limited by Section 8(b) of the Local Agency Law, Act of December 2, 1968, P.L. 1133, formerly 53 P.S. § 11308(b).*fn2 We must

[ 65 Pa. Commw. Page 274]

    affirm the adjudication below unless constitutional rights have been violated, the provisions of the Local Agency Law have not been complied with in the proceeding before the Commission, an error of law has been committed, or the findings of the Commission are not supported by substantial evidence. DiCiacco v. Civil Service Commission of City of Philadelphia, 37 Pa. Commonwealth Ct. 77, 389 A.2d 703 (1978).

Section 7.7-303 of the Philadelphia Home Rule Charter, 351 Pa. Code § 7.7-303, and Civil Service Commission Regulation 17.02 provide that a civil service employee of the City of Philadelphia shall be dismissed only for just cause. "Just cause" was thoroughly discussed and defined in O'Gorman Appeal, 409 Pa. 571, 187 A.2d 581 (1963). Quoting from that opinion, this Court held in Staton v. Civil Service Commission of Philadelphia, 1 Pa. Commonwealth Ct. 543, 547, 275 A.2d 716, 717-18 (1971):

All that the law requires is that the cause be concerned solely with the inefficiency, adequacy or misconduct of the employe. A wide latitude must be left to the superior officer -- in fact a discretion conditioned only on its exercise in good faith and not a screen for some reason not based upon the fitness of the employe to fill the position.

[409 Pa. at 576, 187 A.2d at 583.]

Applying this criterion to the circumstances of the instant case, we must conclude that the City of Philadelphia Water Department and the Commission could have properly found that just cause existed for Banks' dismissal. Banks acknowledges that he worked for Temple University while he was on IOD and that this was improper and in violation of the provisions of Regulation 33.028. However, it is his contention, accepted by the lower court, that he cannot be dismissed

[ 65 Pa. Commw. Page 275]

    for violating Regulation 33.028 because the wording of that regulation makes no reference to the consequence of a violation of its prohibition. To state Banks' contention another way, he cannot be dismissed for violating a Civil Service Commission regulation unless the regulation violated provides by its terms for dismissal. We think this is a contention without merit and reject it as being controlling here.

In O'Gorman Appeal, our Supreme Court held that the lack of a specific prohibited-conduct section did not invalidate a dismissal. We conclude the lack of a specific penalty section, likewise, does not invalidate a dismissal.

As has been stated, all that the law requires is that the employee be dismissed for just cause and that the cause be concerned solely with the inefficiency, adequacy, or misconduct of the employee. In the instant case, Banks concedes that, by working at Temple University while on IOD status with the City, he violated Regulation 33.028. This admitted violation is misconduct by Banks which provides the just cause to support his dismissal by the City's Water Department and the affirmance of that dismissal by the Commission.

Order reversed and case remanded.*fn3

[ 65 Pa. Commw. Page 276]

Order

And Now, this 11th day of March, 1982, the order of the Court of Common Pleas of Philadelphia County, dated July 13, 1979, sustaining the appeal of Melvin Banks and reversing the decision of the Civil Service Commission of the City of Philadelphia, is reversed, and this case is remanded to that court to rule upon the undisposed issues raised by Melvin Banks in his appeal to that court from the Commission's decision.

Judge Palladino did not participate in the decision in this case.

Disposition

Reversed and remanded.


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