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Szablowski v. State Civil Service Commission (Pennsylvania Liquor Control Board)

Commonwealth Court of Pennsylvania

August 13, 2013

Deanna M. Szablowski, Petitioner
v.
State Civil Service Commission (Pennsylvania Liquor Control Board), Respondent

Argued: June 20, 2013

BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge

OPINION

MARY HANNAH LEAVITT, Judge

Deanna M. Szablowski (Employee) petitions for review of an order of the State Civil Service Commission that sustained the decision of the Pennsylvania Liquor Control Board to terminate her employment. Employee argues that her suspension violated due process and that the evidence did not establish just cause for her dismissal. Concluding that the Civil Service Commission's findings of fact are incomplete or erroneous, we vacate and remand.

In 2005, Employee began her employment with the Liquor Control Board and, in April 2008, was promoted to Liquor Store Clerk 2, i.e., an assistant manager position. She worked as an assistant manager at Store 0608 from August 2009 through September 2011, during which time the store manager and her immediate supervisor was Newton Mull. She and Mull supervised two other employees that made cash register transactions: Dennis Wingle, a full-time Clerk I and Joseph Reedy, a part-time clerk. In 2010, Employee reported her suspicions to Jerome Yeager, the District Manager, that she believed that Mull was stealing from the store by issuing refunds to his credit card. The Office of Auditor General investigated, and Mull was dismissed in January 2011.

In June 2011, Employee went on maternity leave for approximately two months. During her leave, the Liquor Control Board initiated an audit of Store 0608. Employee was suspended without pay on September 21, 2011, and on November 15, 2011, the Board conducted a fact-finding session in which Employee participated. At its conclusion, Employee was discharged for "manipulating" store funds, records or merchandise in violation of Board policies. She was not charged with fraud or theft.

Employee appealed her suspension and discharge to the Civil Service Commission. The Liquor Control Board identified the reasons for her dismissal as follows:

(1) Serious violation of procedure/manipulation of Commonwealth funds/records/merchandise in Store #0608 despite prior related instruction and training; in that during the period of September 30, 2009 through January 12, 2011, you performed approximately 102 fraudulent/questionable post-voids which resulted in a loss to the Commonwealth of approximately $2, 217.89.
(2) Serious violation of procedure in Store #0608 despite prior related instruction and training; in that during but not limited to the period of September 30, 2009 through January 12, 2011, you improperly completed approximately 51 post-void transactions without having part/all of the required supporting documentation

Reproduced Record at 753a (R.R.). These cited incidents all related to the time period when Mull was the manager of Store 0608.

In support of its dismissal of Employee, the Liquor Control Board presented the testimony of Kelly Leonard, one of its auditors. She testified that in July 2011, she reviewed the store records and the clerk performance evaluations. Because of the experience with Mull, she decided to examine records of the other employees at Store 0608. Those records disclosed that between July 2009 and January 2011, Mull's voided sales totaled $22, 827.15. By comparison, Wingle's totaled $5, 569.52; Reedy's totaled $2, 831.73;[1] and Employee's totaled $4, 075.39. Leonard decided that Reedy's total was too small to warrant an investigation. Wingle's total prompted an investigation, but he was cleared. However, Leonard's investigation of Employee showed that she had voided 132 sales, and Leonard believed that 102 of those were potentially fraudulent. Leonard concluded that Mull had manipulated "post-void" transactions.

Leonard explained that a "post-void" transaction is done on the cash register to delete a sale. A sale will be deleted where, for example, a customer does not have enough cash to make the purchase or his credit card is declined. Leonard explained that a post-void transaction can be manipulated to facilitate a theft from the cash register. For example, the employee may place cash for a sale in the register and later void the sale and pocket the cash. The cash register drawer will settle at the end of the shift.[2] Under the Liquor Control Board's policy, the employee is required to write the reason for the post-void transaction on a print-out produced by the cash register. This paperwork must be retained. Leonard testified that 51 of Employee's post-void transactions were missing some or all of the supporting paperwork.

Leonard then challenged "29" of Employee's post-void transactions for which paperwork was present but not corroborated. In these "29" post-void transactions, Employee wrote that the customer's credit card was declined. However, the cash register's electronic journal did not show that a credit card transaction had been attempted on those occasions. The Civil Service

Commission's adjudication listed the "29" transactions as follows:

20. The BLCBS Auditors found that although the following void reports were notated as based upon a declined credit card, the corresponding electronic journal record did not indicate that a credit card transaction was either attempted or declined:

DATE/TIME OF VOID

TRANSACTION NUMBER

AMOUNT

a.

4/27 16:10

3433

$48.74

b.

5/19 09:56

5217

$20.22

c.

5/24 18:03

5716

$24.58

d.

6/08 18:49

7236

$11.12

e.

6/30 09:50

9145

$27.54

f.

7/06 17:39

9849

$21.19

g.

7/09 10:35

0131

$16.94

h.

8/06 17:23

2612

$27.55

i.

8/07 12:25

2720

$14.83

j.

8/13 12:13

3133

$ 9.53

k.

9/04 09:45

5340

$16.95

l.

9/04 11:57

5372

$36.01

m.

9/10 09:27

5814

$12.29

n.

9/14 18:18

6218

$16.95

o.

9/17 20:56

6494

$ 9.53

p.

9/22 09:40

6737

$21.19

q.

9/23 16:57

6896

$22.24

r.

9/29 17:51

7551

$40.26

s.

10/04 14:27

7953

$14.83

t.

10/06 15:06

8225

$21.18

u.

10/07 19:41

8422

$77.34

v.

10/12 18:38

8834

$22.25

w.

10/15 20:44

9136

$14.83

x.

10/2118:35

9584

$61.45

y.

10/27 15:54

0196

$25.43

z.

10/29 19:54

0493

$15.89

aa.

10/30 10:45

0536

$29.67

bb.

11/06 20:54

1325

$11.65

cc.

12/18 20:07

5789

$13.77

dd.

12/30 20:20

7688

$21.19

Commission Adjudication, Finding of Fact No. 20. All took place in 2010. Notably, the list contains 30, not 29 transactions. Nevertheless, the Civil Service Commission referred to this list as having "29" transactions throughout its adjudication, as did Leonard in her testimony.

Leonard explained other cash register functions. The "no sale" function allows the employee to open a drawer without registering a sale and is done when an employee needs to make change. The "pick-up" function is done when cash is removed from the cash register and moved to a safe. ...


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