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SELIM A. ELIAS v. COMMONWEALTH PENNSYLVANIA (12/06/82)

decided: December 6, 1982.

SELIM A. ELIAS, M.D., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, POLK CENTER, RESPONDENT



Appeal from the Order of the State Civil Service Commission in the case of Selim A. Elias v. Polk Center, Department of Public Welfare, No. 2613.

COUNSEL

Barbara L. Smith, Mahany, Roeder & Kirvan, for petitioner.

Marlene W. Jackson, Deputy Attorney General, for respondent.

Judges Rogers, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge Doyle. Judge MacPhail dissents.

Author: Doyle

[ 70 Pa. Commw. Page 256]

This is an appeal by Selim A. Elias, M.D. (Petitioner) from a supplemental decision and order of the State Civil Service Commission (Commission) reaffirming

[ 70 Pa. Commw. Page 257]

    a prior Commission decision to deny Petitioner back pay. We reverse.

Petitioner was dismissed from his position as a Physician II, regular status, at the Polk Center, a Pennsylvania Department of Public Welfare administered medical facility, on October 3, 1978. The alleged grounds for the dismissal were: (1) Petitioner's unprofessional conduct in placing statements on a medical chart which were critical of another physician's treatment of a patient, (2) his insubordination in photographing a patient being held in an isolation unit which was contrary to hospital rules prohibiting the photographing of patients, and (3) a memorandum Petitioner sent to the Superintendent of Polk Center attacking that individual's competence. Petitioner appealed his dismissal to the Commission which, after a hearing, held: (1) the notation on the medical chart, while "tactless," was "essentially correct" and could not be considered cause for disciplinary action, (2) the photographing of the patient could not constitute grounds for dismissal because the appointing authority failed to produce the rules which had allegedly been promulgated prohibiting such an act nor did they establish that Petitioner knew of such rules, and (3) that Petitioner could not be dismissed for the memorandum to the Superintendent because the only evidence that it contained insubordinate comments was the testimony of the Superintendent; the letter itself was never introduced into evidence. The Commission also, however, summarily denied an award of back pay for the over one year period of Petitioner's dismissal.

Petitioner appealed the denial of back pay to this Court, and, in Elias v. Department of Public Welfare, 57 Pa. Commonwealth Ct. 503, 426 A.2d 762 (1981) we ruled that, while it was within the Commission's discretion

[ 70 Pa. Commw. Page 258]

    to deny back pay in matters such as that at bar, the exercise of said discretion required findings of fact and conclusions of law specifically directed to the denial of back pay so as to enable this Court to effectively review the matter on appeal. Since no such findings of fact or conclusions of law were part of the record then before us, we accordingly remanded the case to the Commission with the express instruction that they be made.

On remand the Commission rendered a Supplemental Adjudication, again denying back pay, which ...


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