Warner v. Civil Service Commission , 5 Pa. Commw. 169 ( 1972 )

Opinion by

Judge Rogers,

This is an appeal from an order of the State Civil Service Commission sustaining the action of the Pennsylvania Liquor Control Board in removing appellant from his position as an Enforcement Officer I, regular status.

The appellant was removed from his employment by the Liquor Control Board after consideration by it of the following charge: “Theft. On April 27, 1971, you unlawfully removed notes of investigation from the desk of Enforcement Officer Joseph J. Capparell. ...” This charge followed upon the appellant’s production at an earlier' Civil Service Commission hearing, in which the appellant was charged with falsifying his expense account, of notes of investigation prepared by another enforcement officer.

At the hearing before the Commission on the instant charge, the Board offered in support of its removal action the testimony of a stenographer for the Board that she observed the appellant examining the contents of another officer’s desk and the testimony of that officer that the notes of investigation later produced by the appellant were his and had been in his desk. The appellant admitted his intrusion into his fellow officer’s desk, but stated that the purpose was to examine reports of arrests made by him and the other officer. He claimed to have found the notes of investigation in a wastepaper basket.

Our examination of all of the testimony leads us to conclude that, accepting, as we must, the Commission’s finding that the appellant removed the notes in question, the appellant should not have suffered the penalty here imposed. It would not be helpful for us to analyze appellant’s conduct for proof of the essential elements of larceny; technically it might constitute that serious offense. Rather, we believe that appellant’s conduct should be considered for what it was, not what it might in anathematical terms be denominated. The case of Thomas v. Kessler, 334 Pa. 7, 5 A. 2d 187 (1939), still of diverting memory in Chester County, provides some guidance, if not a definitive precedent. There a mother and daughter, the beneficiaries of á trust the principal asset of which was the capital stock of a local newspaper, had been accustomed to stop at the newspaper office and take for their personal use stationery supplies. The president of the newspaper company, annoyed with this practice, instructed office employees not to permit the ladies to remove supplies. Despite these orders and over the protests of the employees, the ladies took some writing paper and envelopes, whereupon the president caused the daughter to be arrested on a charge of larceny. An indictment was ignored by the grand jury and the president of the newspaper was promptly sued for malicious prosecution. The court below entered a compulsory nonsuit on the ground that there was probable cause for the prosecution. The Supreme Court reversed and awarded a new trial, saying: “When the facts and surrounding circumstances above outlined are considered, it is obvious no larceny was committed, that there was no felonious intent in plaintiff’s mind, that she was not stealing a few sheets of paper, and that she took it because she thought, mistakenly perhaps, that she had the right to. It has been repeatedly held that when one takes property under a claim of right, even though mistaken, larceny is not committed [authorities cited].” 334 Pa. at 9, 5 A. 2d at 188.

We recognize the important distinction between Kessler and this case that there the alleged thieves took property under a colorable claim of right whereas the appellant here had slight ground for believing he had a right to take the notes of another. But the appellant did not examine the contents of Ms fellow officer’s desk surreptitiously but at a time when at least one other employee was present. Assuming, as the Board found, that he made off with Ms partner’s notes, it was not with the purpose of using them otherwise than to prove his innocence of a charge of misconduct to which they were relevant. We note that the Commission finds the appellant to have done nothing more serious than searching the desk and wrongfully removing the notes in question, omitting all reference to theft. The appellant’s conduct was certainly improper and the Board was justified in imposing discipline. We believe, however, that the charges were overstated and that the Commission’s order as a consequence placed too serious a construction upon them.

The Board at this rather late date still contends that our review is upon narrow certiorari. We point out again that the Act of December 2, 1968, P. L. , No. 354, amending Section 47 of the Administrative Agency Law, Act of June 4, 1945, P. L. 1388, 71 P.S. §1710.47, implementing Article 5, Section 9 of the Pennsylvania Constitution, provides for an appeal in accordance with the Administrative Agency Law. This empowers us to determine whether the adjudication is supported by substantial evidence.

Section 951 of the Civil Service Act, Act of August 5, 1941, P. L. 752, added by the Act of August 27, 1963, P. L. 1257; 71 P.S. §741.951, states that where the final decision of a civil service case is in favor of the employee, he shall be reinstated with the payment of so much of the salary or wages lost by him as the Commission may in its discretion order. We find in the Civil Service Act as presently written no power in the Commission in the case of reinstatement to discipline except in relation to pay or by modifying a suspension imposed by the appointing authority under Section 803, 71 P.S. §741.803. We believe that we too have no such power and that when the employee has been removed we may not modify by the imposition of a suspension. We will leave it to the Commission, as the Act suggests, to determine what payment of salary, if any, should be made upon the appellant’s reinstatement. We therefore make the following order.

Order

And Now, this 13th day of April, 1972, the order of the Civil Service Commission dated November 9, 1971, is set aside and the appellant, James F. Warner, is ordered reinstated to his position as Enforcement Officer I, regular status, with the Liquor Control Board and the record is remanded to the Civil Service Commission for consideration and decision as to the amount, if any, to be paid on account of salary or wages lost by the appellant.