Opinion
No. 2520 C.D. 2011
11-05-2012
Donald Sitar, Petitioner v. State Civil Service Commission (Liquor Control Board), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Donald Sitar petitions for review of the order of the State Civil Service Commission (Commission), which dismissed Petitioner's appeal challenging his removal from employment with the Pennsylvania Liquor Control Board (Board) and sustained the Board's decision to terminate his employment. We affirm.
Petitioner was discharged from his position as a Liquor Store Clerk 1, by letter dated April 23, 2011, for failure to properly discharge the duties and responsibilities of a Liquor Store Clerk 1. He failed to follow the proper procedures regarding fake IDs, which allegedly resulted in a sale to a minor. Petitioner appealed his dismissal to the Commission. The Commission held a hearing on August 11, 2011 at which Petitioner testified on his own behalf. The Board presented the testimony of General Manager Michael Aquilina, Intermittent Liquor Store Clerk Annette Smutny, Liquor Store Clerk Cynthia Fisher, former District Manager Michael Timko, and Human Resource Analyst David Beardsley.
The Commission found the following facts regarding Petitioner's dismissal. On March 4, 2011, District Manager Michael Timko had circulated an email about fake IDs to all managers, including Petitioner's general manager, Michael Aquilina. The email advised that some fake driver's licenses were circulating, which when scanned would produce a declaration of age card (931 report) that listed an incorrect height and/or a random set of letters to denote eye color. The email noted that some of the IDs had holograms. The email instructed employees to deny the sale if there was a discrepancy between the customer's ID and the 931 report. Aquilina explained the email to each employee and had each employee initial the email, including Petitioner. At a staff meeting on March 10, 2011, Aquilina discussed the email again and had all employees, including Petitioner, sign a report indicating they attended the meeting.
On March 11, 2011, Intermittent Liquor Store Clerk Annette Smutney was running a register when a male customer wearing a suit and tie attempted to buy a bottle of whipped cream vodka. Smutney scanned his driver's license and a 931 report printed out. She noticed that the customer's eye color was stated as "LU." Smutney rang the store's buzzer so that Liquor Store Clerk Cynthia Fisher would come to the register. When Fisher arrived, Smutney showed her the 931 report and pointed out that it stated the eye color was "LU" and the height was reported at "55 feet 0 inches." While Smutney and Fisher were discussing the 931 report and the March 4 email, Petitioner arrived at the register. Petitioner examined the ID and 931 report and concluded that the license was good. Smutney reminded Petitioner of the email, but he replied that the information printed on the 931 report was a result of PennDOT's mistake. Petitioner then processed the sale at a different register. Petitioner printed a second 931 report, which contained the same errors. The customer signed the 931 report, paid for his purchase and left the store. Smutney placed the two 931 reports in Aquilina's office.
Upon his return to the store, Aquilina questioned Smutney regarding the reports. She stated that she did not complete the sale because of exaggerated height and improper eye color. When Aquilina questioned Petitioner, he stated that he completed the sale because PennDOT messed up the customer's license. Aquilina then sent an email to Timko advising him of the incident. Timko conducted an investigation into the sale, including a review of the store's surveillance video. By letter dated March 18, 2011, Timko informed Regional Manager Charles Mooney of the investigation results and requested that appropriate disciplinary action be taken. On April 15, 2011, Mooney sent a memorandum to Chief of Labor Relations Lori Bornman summarizing his fact-finding and recommending Petitioner's removal. The April 23 dismissal letter stated that Petitioner was dismissed for his failure to follow procedure regarding fake IDs in conjunction with his prior disciplinary history, including a 2010 last chance agreement and final warning.
The Board sustained Petitioner's dismissal, finding that he disregarded clear instructions given by his employer resulting in an illegal sale of liquor to minor, which reflected negatively upon his competency and ability to perform his job. Petitioner's request for reconsideration was denied. This appeal followed.
Petitioner primarily argues that the Commission erred in concluding that Section 495 of the Liquor Code, 47 P.S. § 4-495, was not applicable to his case. Under Section 495, a purchaser of alcohol must present a valid identification card and may be required to sign a form affirming that he is of age. The liquor store employees may rely upon the identification presented and the signed form in good faith. Id. Section 495(e) provides in relevant part:
Act of April 12, 1952, P.L. 90, as amended.
Petitioner also alleges that the Board allowed Assistant Manager Jeff Scatton to attend a wine tasting class when it was aware that minors were using fake IDs from the internet to purchase alcohol. This issue is waived as Petitioner failed to raise it before the Commission and he failed to develop this argument in the body of his brief. City of Phila. v. Berman, 863 A.2d 156, 161 (Pa. Cmwlth. 2004); Kelly v. Workmen's Comp. Appeal Bd. (DePalma Roofing), 669 A.2d 1023, 1025 (Pa. Cmwlth. 1995). --------
No penalty shall be imposed on a ... State Liquor Store employe for serving alcohol to a minor if the ... employe can establish that the minor was required to produce an identification card as set forth in subsection (a), the minor completed and signed the form as set forth in subsection (c) and these documents were relied upon in good faith. This defense shall apply to all civil and criminal prosecutions. [Emphasis added.]In addition, Section 495(g) states in pertinent part:
In addition to the defenses set forth in subsections (e) and (f), no penalty shall be imposed on a ... Pennsylvania Liquor Store employe for serving alcohol to a minor if the licensee or employe can establish that the minor was required to produce an identification card as set forth in subsection (a), the identification card is identified as a valid card by a transaction scan device and the identification card and transaction scan results were relied upon in good faith. This defense shall apply to all
civil and criminal prosecutions. For purposes of this section, a "transaction scan device" is a device capable of deciphering in an electronically readable format the information encoded on the magnetic strip or bar code of an identification card set forth in subsection (a). [Emphasis Added.]
Although Petitioner testified that he relied upon the 931 report in good faith and that he should not have been dismissed pursuant to Section 495, the Commission did not address this issue in its opinion. Petitioner raised the issue again in his brief. The Section 495 defense is only applicable in civil and criminal prosecutions. Removal actions before the Commission are neither civil nor criminal prosecutions, but rather are administrative actions. Administrative actions are distinct from either civil or criminal prosecutions; administrative actions have different substantive and procedural provisions and remedies, and the tribunals vested with original jurisdiction and initial appellate jurisdiction are likewise distinct. See Pittsburgh Water & Sewer Auth. v. Gladstone, 999 A.2d 1248 (Pa. Cmwlth. 2010) (holding that the term "civil action" does not encompass statutory appeals). Accordingly, Section 495 is not available to Petitioner as an affirmative defense in this proceeding.
Even if the Section 495 defense were applicable, Petitioner's actions did not satisfy the good faith requirement. The 931 report showed the customer's height at 55 feet 0 inches and his eye color as "LU." Petitioner had been advised the previous day to be on the lookout for realistic IDs that, when scanned, would reflect mistakes such as exaggerated height or improper eye color codes and to confiscate such IDs. Petitioner disregarded this warning and completed the sale. By disregarding his employer's instructions, he did not act in good faith.
For all of the foregoing reasons, we affirm.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 5th day of November, 2012, the order of the State Civil Service Commission is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge