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11/25/97 ROBERT E. QUINN v. PENNSYLVANIA STATE

November 25, 1997

ROBERT E. QUINN, PETITIONER
v.
PENNSYLVANIA STATE CIVIL SERVICE COMMISSION, RESPONDENT



Appealed From No. 18959. State Agency State Civil Service Commission.

Before: Honorable Dan Pellegrini, Judge, Honorable Jim Flaherty, Judge, Honorable Charles P. Mirarchi, Jr., Senior Judge. Opinion BY Judge Flaherty.

The opinion of the court was delivered by: Flaherty

BY JUDGE FLAHERTY

FILED: November 25, 1997

Robert E. Quinn (Petitioner) petitions for review of an order from the State Civil Service Commission (Commission) dismissing his statutory appeal, pursuant to Section 951 of the Civil Service Act, *fn1 alleging discrimination in the scoring of his civil service examination. We affirm.

On July 20, 1995, Petitioner participated in an oral examination of candidates for the Executive Director and the Deputy Executive Director positions with the Scranton City Housing Authority. The Commission administered the examination through two separate panels of oral examiners. Each panel consisted of two members. Patricia Graves and Forrest Schaeffer constituted the panel of examiners that examined Petitioner. The second panel was not involved in Petitioner's examination. Subsequently, Petitioner received a Notice of Examination Results, dated July 25, 1995, informing him that he failed the examination for both positions and that he was not added to the list of qualified candidates for those positions.

On September 12, 1995, Petitioner appealed the denial of his candidacy to the Commission alleging discrimination, conflict of interest, and conspiracy in the administration and scoring of his exam. Petitioner requested a hearing and sought a qualifications and exam performance re-evaluation. The Commission scheduled a public hearing for July 25, 1996.

By letter dated July 15, 1996, Petitioner requested that the Commission issue a subpoena duces tecum for certain documents that were in the possession of Thomas Kane, Supervisor of Housing for the City of Scranton Office of Community Development. On this same date, Petitioner also submitted a letter requesting the Commission to issue subpoenas for the testimony of certain named individuals, which included the name of Thomas Kane. However, by letter dated July 18, 1996, the Commission expressly denied Petitioner's subpoena request for the testimony of certain named individuals, including that of Thomas Kane, because the Commission deemed such testimony irrelevant to the issues that Petitioner raised on appeal challenging his test score. The Commission, however, did issue several subpoenas commanding certain individuals named therein to appear and testify before the Commission. Additionally, the Commission issued a subpoena duces tecum commanding John Wilk, Executive Director of the Commission, to provide certain documents to Petitioner and to appear at the hearing. This subpoena duces tecum expressly stated in boldface type that it was for documentation only. Although the requested documents were in fact given to Petitioner, at no time during the hearing did Petitioner introduce the documents into the record or challenge the information contained therein.

John Wilk failed to appear for the July 25, 1996 hearing. By letter dated July 26, 1996, one day after the hearing, Petitioner filed a petition with the Commission requesting that the Commission find John Wilk in contempt for failing to appear at the hearing and provide the requested documents in violation of the subpoena duces tecum that was served upon him. On August 1, 1996, the Commission denied Petitioner's request concluding that Petitioner did not subpoena John Wilk to testify as a witness and that Wilk did not fail to provide Petitioner with the requested documents. Petitioner subsequently filed a petition for review with this court challenging the denial of his request to find John Wilk in contempt. By order dated August 23, 1996, this court quashed the petition.

By opinion and order dated February 24, 1997, the Commission denied Petitioner's appeal concluding that Petitioner failed to show that discrimination affected his test scores. On March 7, 1997, Petitioner filed a petition for reconsideration with the Commission. On March 20, 1997, Petitioner filed his petition for review with this court seeking our review of the Commission's order of February 24, 1997. *fn2

Our scope of review in civil service cases is limited to determining whether an error of law was committed, constitutional rights were violated, or whether substantial evidence supports the Commission's findings. *fn3 Price v. Luzerne/Wyoming Counties Area Agency on Aging, 672 A.2d 409, 412 n.8 (Pa. Commw. 1996).

Petitioner raises twelve overlapping issues here on appeal. The first issue that Petitioner raises on appeal is whether the Commission violated his right to due process and a fair hearing by refusing to compel John Wilk, who was served with a subpoena duces tecum, to appear and testify. Petitioner argues that the Commission denied his due process rights to a fair hearing by failing to enforce the subpoena for John Wilk and thereby prevented Petitioner from having his evidence presented or his case properly heard. We disagree.

The record demonstrates that Constable Reed served John Wilk with a subpoena duces tecum for documentation only. This subpoena also commanded John Wilk to appear at the hearing with the requested documents on July 25, 1995. Petitioner specifically objected to the absence of Wilk and requested that the Commission enforce the subpoena. The Commission, however, proceeded and closed the record without the testimony of John Wilk reasoning that the subpoena only demanded that Wilk supply documentation which was in fact supplied to Petitioner prior to the hearing. Therefore, the Commission concluded that Wilk's presence was not necessary.

The presence of the custodian of documents requested by a subpoena duces tecum is necessary so the custodian can authenticate the documents for their admission in evidence. Woods v. Dunlop, 461 Pa. 35, 42-47, 334 A.2d 619, 623-25 (1975). The testimony of the custodian is limited to identifying and validating the documents. In the instant matter, the record indicates that Petitioner failed to admit the subpoenaed documents into evidence or in any way make the documents part of the record. Had Petitioner requested to admit the documents and had the Commission denied such a request, Petitioner would have a valid argument that the Commission should have required the presence of Wilk to authenticate the documents before the close of the record. By failing to challenge the accuracy of the documents previously ...


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