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COMMONWEALTH PENNSYLVANIA v. PAUL A. ROBISON (07/20/89)

decided: July 20, 1989.

COMMONWEALTH OF PENNSYLVANIA, STATE CORRECTIONAL INSTITUTION AT DALLAS, DEPARTMENT OF CORRECTIONS, PETITIONER,
v.
PAUL A. ROBISON, RESPONDENT



COUNSEL

David B. Farney, Asst. Counsel, Camp Hill, for petitioner.

Joseph F. Iracki, Wilkes-Barre, for respondent.

Craig and Colins, JJ., and Kalish, Senior Judge.

Author: Kalish

[ 127 Pa. Commw. Page 177]

The Pennsylvania Department of Corrections (petitioner) petitions to review the order of the State Civil Service Commission (Commission), sustaining the appeal of Paul A. Robison from removal of his position as Correction Officer

[ 127 Pa. Commw. Page 1781]

, ordering his return to duty, and ordering reimbursement of lost wages.

Robison was removed from his position for reporting for work unfit for duty and causing a serious breach in security, thereby violating rule B-14 of the Department of Corrections Code of Ethics. This rule provides that an employee shall not report for duty under the influence of intoxicants.

On appeal, the Commission found that corrections officer Robison was assigned to S-1 cell block, a restricted housing unit which incarcerates inmates who have shown violent behavioral patterns and inability to conform to rules. It was found that he was the sole officer so assigned, and Robison reported for work at 10:00 p.m., his shift ending at 6:00 a.m. The Commission found that he is required to call the officer on duty every one-half hour, and in fact he did call at 10:30, 11:00, and 11:30, but he failed to make the required call at midnight. Another officer was sent to check on the situation, and found Robison with his head on the desk. According to the Commission's findings, Robison could not be aroused initially, and when aroused was not coherent. Additionally, there was vomit in the toilet behind his desk. It was found that Robison was initially taken to the infirmary, and then to the hospital where Dr. Hunt, the physician in charge, ordered other employees to obtain a blood sampling for alcohol, which was reported to be 0.23.

While the findings of fact by the Commission do not so indicate, the record does show that Dr. Hunt examined Robison, noticed the odor of alcohol on his breath, slurred speech, conducted an eye test, ordered the blood alcohol test to be taken, and found him to be intoxicated. Notes of testimony (N.T.), January 6, 1988, at 19. In its discussion, the Commission, based on the fact that Dr. Hunt did not personally take the blood for examination, did not consider the report reliable and concluded that the report was not probative of Robison's sobriety on the night in question.

The Commission also found that Robison had no prior disciplinary actions or misconduct, and even after suspension,

[ 127 Pa. Commw. Page 179]

Robison was assigned to high security duties which included the tower and S-1 cell block. The Commission concluded that although Robison was physically disabled, it was not the result of intoxication, but of physical exhaustion caused by prior family matters, and attending a wedding ...


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