Opinion
Argued October 31, 1975
November 26, 1975.
Civil service — Scope of appellate review — Weight of evidence — Credibility — Findings of fact — Substantial evidence — Just cause for removal — Insubordination — Unsatisfactory performance — Civil Service Act, Act 1941, August 5, P.L. 752.
1. In reviewing a determination of the State Civil Service Commission, the Commonwealth Court of Pennsylvania will not weigh evidence or determine questions of credibility but consider only whether substantial evidence supports the findings of the Commission. [107-8]
2. When substantial evidence is produced supporting findings that a classified employe was guilty of insubordination in refusing a work assignment and persistently worked in an unsatisfactory manner, the State Civil Service Commission may properly conclude that the removal of such employe was for just cause under the Civil Service Act, Act 1941, August 5, P.L. 752. [108-9]
Argued October 31, 1975, before Judges WILKINSON, JR., ROGERS and BLATT, sitting as a panel of three.
Appeal, No. 677 C.D. 1975, from the Order of the State Civil Service Commission in case of Frank M. Holodnak v. Department of Revenue, No. 1567.
Termination of employment by Department of Revenue appealed by employe to State Civil Service Commission. Action sustained. Employe appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Jay Bryan Schiegg, for appellant.
James P. Musselman, Assistant Attorney General, for appellee.
The State Secretary of Revenue removed Frank M. Holodnak from his Civil Service position of Field Auditor I attached to the Erie office of the Bureau of Sales and Use Taxes for insubordination and unsatisfactory performance of work. Mr. Holodnak has appealed from an order of the State Civil Service Commission sustaining the Secretary's action. We affirm.
The appellant's sole complaint is that the evidence supporting the Commission's findings that the appellant had insubordinately refused to perform a work assignment and did other work unsatisfactorily is insubstantial. Our duty is simply to determine whether the record contains substantial evidence supporting the Commission's findings; we do not weigh the evidence or determine questions of credibility. Commonwealth v. State Civil Service Commission and Ladner, 12 Pa. Commw. 400, 316 A.2d 676 (1974).
Mr. Holodnak was attached to the Erie office of the Bureau of Sales and Use Tax doing field audits. In accordance with a practice of the Bureau, his superiors in late October 1974 assigned him temporarily to the Philadelphia District office to complete a limited number of audits in that City. He did not want to go to Philadelphia and asked to be excused from this duty for a number of reasons of a personal nature. He was not excused and proceeded to Philadelphia where on November 18, 1974 he completed two assignments but failed to perform a third. When he returned to Erie his superiors ordered him to return to Philadelphia and to complete the third audit on December 2, 1974. In response to this directive, Mr. Holodnak composed and delivered to his superiors a memorandum in which he said that he failed to do the audit on November 18, 1974 because the retail store which was the subject of the audit was located in a hazardous neighborhood. In the memorandum, and in his later testimony before the Commission, he based his conclusion that it was unsafe for him to perform the audit on conversations with taxicab drivers and a policeman, who, he asserts, told him that the neighborhood of the establishment was not safe to enter between the hours of 8:00 A.M. and 5:00 P.M. The appellant's memorandum concerning the second Philadelphia visit contains the following sentence: "Under these circumstances I am refusing to do this audit at the Paramount Record Shop site on 1159 South St." It is apparent that neither the appellant's supervisors nor the Commission believed that the appellant entertained any reasonable fear for his personal safety or that the appellant's failure in the first instance and refusal in the second to do the assignment was sincerely motivated by this consideration. The Commission properly noted that in neither instance did the appellant request assistance.
One asserted reason was his wife's illness, which he was asked, but failed, to substantiate with a medical certificate.
One of his superiors testified that the appellant told him that he had been advised that the neighborhood was not safe between the hours of 8:00 P.M. and 5:00 A.M.
In support of the charge that the appellant performed his work unsatisfactorily, the appointing authority adduced evidence of an almost completely unsatisfactory performance evaluation report, a violation of Bureau procedures concerning personnel matters and other behavior inconsistent with that of an employee sincerely interested in his work for the Commonwealth.
There is substantial evidence supporting the Commission's finding that the Appellant was insubordinate with respect to performing the Philadelphia work assignment and that he persistently performed other work in an unsatisfactory manner, which findings support the Commission's conclusion that the appellant's removal was indeed for just cause. Civil Service Act, Act of August 5, 1941, P.L. 752, as amended, 71 P. S. § 741.807.
ORDER
And now, this 26th day of November, 1975, the order of the State Civil Service Commission dated April 11, 1975 is affirmed and the appeal therefrom of Frank Holodnak is dismissed.