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COMMONWEALTH PENNSYLVANIA v. SHARON A. NOUTCH (11/30/89)

decided: November 30, 1989.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, PETITIONER,
v.
SHARON A. NOUTCH, RESPONDENT



PETITION FOR REVIEW, (STATE CIVIL SERVICE COMMISSION).

COUNSEL

Timothy P. Wole, Asst. Chief Counsel, with him, Arthur R. Thomas, Asst. Chief Counsel, and Robert A. Greevy, Chief Counsel, for petitioner.

Barry F. Greenberg, for respondent.

Crumlish, Jr., President Judge, and Colins and McGinley, JJ.

Author: Crumlish

[ 130 Pa. Commw. Page 49]

OPINION

The Pennsylvania Board of Probation and Parole (Board) appeals a State Civil Service Commission (Commission) order overruling the Board's removal of Sharon Noutch from her position as a Clerk Typist 2, probationary status, and directing reinstatement with backpay. We vacate and remand to the Commission.

The Board discharged Noutch after discovering that she failed to disclose on her employment application that she was convicted of a summary criminal offense. Noutch appealed to the Commission on the basis of discrimination pursuant to Section 951(b) of the Civil Service Act (Act)*fn1 allowing such appeals by probationary employees.

Rather than conducting a Section 951(b) hearing, in which the burden is on the probationary employee to prove discrimination, the Commission elected to convene a special "investigatory hearing" under Section 951(d), 71 P.S. ยง 741.951(d). In this hearing, the Commission did not address discrimination issues; rather, it confined its investigation to whether Noutch falsified her job application.

[ 130 Pa. Commw. Page 50]

Following this Section 951(d) hearing, the Commission adjudicated Noutch's appeal by overruling her removal. Specifically, the Commission found that since Noutch was unaware of her criminal conviction, she did not intentionally falsify her job application. The Commission also concluded that the conviction for retail theft did not, in itself, amount to sufficient cause for the Board's decision to remove her.

The Board contends that the Commission abused its discretion in conducting an "investigatory hearing" under Section 951(d) to adjudicate Noutch's appeal of her removal from ...


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