Appeal from the Order of the State Civil Service Commission in case of Maureen A. Doerr v. Pennsylvania Liquor Control Board, Appeal No. 4376.
Anthony A. Seethaler, Jr., for petitioner.
Felix Thau, Assistant Counsel, with him, Gary F. DiVito, Chief Counsel, for respondent.
Judges Craig and Palladino and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri. Judge Williams, Jr. did not participate in the decision in this case.
[ 88 Pa. Commw. Page 611]
Maureen A. Doerr, Petitioner, employed by the Pennsylvania Liquor Control Board (LCB), as an enforcement officer, Enforcement Officer II, regular status, was suspended without pay as of December 17, 1982*fn1 and removed from her position by the LCB as of January 21, 1983,*fn2 on charges of "conduct unbecoming an Enforcement Officer and Commonwealth Employee"
[ 88 Pa. Commw. Page 612]
by virtue of off-duty misconduct which included gun use and violation of certain Manual Instructions. On appeal to the State Civil Service Commission the action of the LCB was sustained. Petitioner then filed this appeal.
The pertinent facts for our purposes are that Petitioner's employment with the LCB was from February 27, 1977 until her removal at the close of business on January 21, 1983; that her duties were related to enforcement of the Commonwealth's liquor control laws by conducting undercover investigations, submitting written reports, as well as participating in LCB open inspections and raids, in connection with which she was issued and authorized to carry a concealed firearm, and was instructed by the LCB on the requirements for its proper care, use and control; that on the evening of December 14, 1982, Petitioner stopped at the residence of Janet Rankin, fiancee of her father's, with whom Petitioner had a long-standing history of disputes and disagreements, whereupon Petitioner became embroiled in a heated argument which escalated into physical violence. As Petitioner was on her way to an LCB raid of a "speakeasy"*fn3 when she stopped at the Rankin residence, she was carrying her LCB-issued firearm. Petitioner lost control of the weapon during the altercation and it was recovered by Rankin's teenage son who hid it and summoned Pittsburgh police who took control of the weapon which was later turned over to a third party and Petitioner did not recover it until the following day. Petitioner was escorted to the station by the police and detained there until she had calmed down when she was then released into the custody of a co-worker, all of which resulted in her failing to participate in the scheduled LCB raid.
[ 88 Pa. Commw. Page 613]
Petitioner contends here that (1) there is not substantial evidence in the record to support a number of the Commission's findings; (2) that the evidence is insufficient as a matter of law to support her removal; and (3) that the penalty imposed for her conduct is harsh and excessive and amounts to an abuse of discretion. We note, of course, that the appointing authority, here the LCB, has the burden of proof to show just cause for the removal of a regular civil service employee, as was Petitioner. Section 807 of the Civil Service Act, 71 P.S. § 741.807; Hoffman v. Pennsylvania Department of Health, 73 Pa. Commonwealth Ct. 284, 458 A.2d 303 (1983). Where the party with the burden of proof has prevailed before the Commission, our scope of review is limited to a determination of whether necessary factual findings are supported by substantial evidence, an error of law committed, or whether any constitutional rights of the appellant were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Magnelli v. Pennsylvania Liquor Control Board, 47 Pa. Commonwealth Ct. 597, 408 A.2d 904 (1979), cert. denied, 449 U.S. 993 (1980).
Our review of the record satisfies us that the Commission's findings are supported by substantial evidence.*fn4 Testimony before the Commission was that of live witnesses, including Janet Rankin and her son, and the fact that the Commission may have given greater credence to the testimony of Rankin and her son than to that of the Petitioner does not constitute an abuse of discretion on the part of the Commission whose function as the fact-finding ...