In re Appeal of Harris
In re Appeal of Harris
Opinion of the Court
Opinion by
. Cecil A. Harris (Appellant) appeals to this Court from an order of the Court of Common Pleas of Philadelphia County which affirmed a decision and order of the Philadelphia Civil Service Commission (Commission) denying Appellant’s request for back-pay for approximately four months of a seven month period of suspension from employment.
On March 2, 1979, Appellant was served with a notice of suspension and intent to dismiss. His dismissal was effective ten days after that. Within thirty days of the dismissal, he filed a timely appeal to the Commission. Hearings were scheduled for two dates in July of 1979, but both times were continued at Appellant’s request pending resolution of criminal charges which had been filed against him on March 1, 1979 in connection with the towing incident. A hearing was finally held on October 31, 1979, by which
The- trial court correctly conducted its review within the confines of Section 754(b) of the Local Agency Law, 2 Pa. C. S. §754(b), concluding that the Commission’s adjudication was not in violation of any constitutional rights of Appellant and was reached in accordance with law, and that all necessary findings of fact were supported by substantial evidence in the record. Since the trial court took no additional evidence, our scope of review is also directed to the findings and conclusion of the Commission. Kujawa v. City of Williamsport, 67 Pa. Commonwealth Ct. 38, 445 A.2d 1348 (1982).
■ Appellant first argues that the Department was required as a matter of law to award him back-pay for all but thirty days of his unemployment because Philadelphia Civil Service Begulation 17.04 prohibits an “appointing authority” from suspending an employee without pay for more than thirty days. This
Appellant argues next that the imposition of any penalty was unwarranted because the Commission’s finding of “just cause” for suspension or dismissal is not supported by substantial evidence.
■ What constitutes ample (just) cause for removal .. . must necessarily be largely a matter of discretion on the part of the head of the department. To be sufficient, however, the cause should be personal to the employee, and such as to render him unfit for the position he occupies, thus making his dismissal justifiable and for the good of the service.
All that the law requires is that the cause be not religious or political, but concerned solely with the inefficiency, delinquency or misconduct of the employe. A wide latitude must be left to the superior officer — in fact a discretion conditioned only on its exercise in good faith and not as a screen for some reason not based upon the fitness of the employe to fill the position.
Id, at 576-77, 187 A.2d at 583-84.
Applying this standard, the Commission concluded that although the facts did not amount to just cause for dismissal, they nevertheless evidenced an error in judgment which unquestionably reflected on Appellant’s personal ability to perform his job and thus amounted to just cause for a lengthy suspension. This conclusion was within the Commission’s discretion and will not be disturbed on appeal.
Finally, Appellant claims that he was prevented from examining his supervisor at the March 24, 1979 hearing regarding possible disparate treatment of
The line of questioning pursued by Appellant’s counsel was, in relevant .portion, as follows:
Q. Has an employee ever been terminated for making a mistake and bring [sic] in a car that had valid tags and a valid inspection?
Mr. Malloy [Counsel for the Department]: Objection.
Mr. Ettinger [Commissioner]: We’ll al-
low the question.
The Witness: No, to my knowledge.
Q. To your knowledge, has an employee ever been suspended for making that mistake?
■ Mr. Malloy: Objection, again.
Mr. Ettinger: Well, now, I think we’ve
gone as far as we can go----
Mr. Walters: .... [W]hat I think is important the Commission know is what is the prior history of any sort of discipline when employees have made that sort of error.
Mr. Ettinger: No, no because we hear cases on an ad hoc basis. The circumstances and facts are not always identical. I think we have granted you wide latitude and leeway when we permitted you to ask the last question and I don’t think we can go any further in this line. We’ll grant you an exception. We sustain the objection. It’s for the Commission to decide what should be done, not this gentleman. This is our job and we will find what we have to on the basis of what we have before us.
Section 554 of the Local Agency Law, 2 Pa. C. S. §554, specifies that agencies are not to be bound by technical rules of evidence. Any evidence which is
We will affirm the decision of the court of common-pleas.
Order
Now, August 9, 1985, the decision of the Court of Common Pleas of Philadelphia County, No. 1227 May Term, 1981, dated February 4, 1983, is hereby affirmed.
351 Pa. Code §7.7-201.
The award of back-pay is mandatory where reinstatement follows any action of any appointing authority which was taken for “any political, religious or racial reason, or labor union activity lawful for municipal employees. . . .” 351 Pa. Code §7.7-201.
“Any dismissal or demotion after the completion of the required probationary period of service, or suspension of any employe in the civil service shall he for just cause only.” 351 Pa. Code §7.7-303.
Reference
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- In the Matter of Appeal of Cecil A. Harris. Cecil A. Harris
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