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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John H. Williams, Jr.,
:

Petitioner

:

:

v.

: No. 1046 C.D. 2002

: Submitted: September 13, 2002
State Civil Service Commission,
:
(State Correctional Institution at Pine :
Grove, Department of Corrections), :

Respondent

:
BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge
HONORABLE
DORIS
A.
SMITH-RIBNER, Judge
HONORABLE
JIM
FLAHERTY, Senior Judge
OPINION BY
SENIOR JUDGE FLAHERTY
FILED: November 19, 2002

John H. Williams, Jr. (Petitioner) petitions for review of an order of
the State Civil Service Commission (Commission) which denied his appeal nunc
pro tunc on the basis that it was filed more than twenty days after the Department
of Corrections (DOC) discharged him from his position as a corrections officer.
We affirm.
Petitioner
was
advised
by letter dated March 27, 2001, that during a
March 20, 2001 Preliminary Hearing before a District Justice, he was charged
with: one Count of Rape (Felony 1), one count of Sexual Assault (Felony 2), one
count of Aggravated Indecent Assault (Felony 2), one count of Involuntary Deviate
Sexual Intercourse (Felony 2) and one count of Indecent Assault (Misdemeanor 2)
for having non-consensual sex with another DOC employee on the grounds of the
State Correctional Institution-Cresson. Petitioner was advised that these actions
were in violation of the DOC's Code of Ethics in addition to the Governor's Code

of Conduct. However, the letter also stated that: "Irrespective of the work-related
criminal charges filed against you, the violations of the Code of Ethics listed above
are sufficient to merit your removal." Accordingly, the DOC advised Petitioner
that he was being terminated from his employment and informed him that his
"Civil Service Appeal Rights are explained in Part III, of SCSC-4112, copies of
which are attached." On November 2, 2001, the District Attorney's office reduced
the charges against Petitioner to two counts of the summary offense of Disorderly
Conduct and two counts of the summary offense of Harassment. On November 15,
2001, Petitioner pled guilty to these charges.

On February 8, 2002, Petitioner filed an Appeal Nunc Pro Tunc with
the Commission requesting a hearing and asserting that:

because of the seriousness of the charges, and the lack of
time between the Preliminary Hearing before the
Magistrate on March 20, 2001, and the Superintendent's
Conference on March 23, 2001, he could not respond
other than as he did, i.e. deny the charges. This Appeal is
late for the same reasons. [Petitioner] could not possibly
prove to this Board within twenty (20) days of his
termination, until he had proof of his innocence, i.e. the
withdrawal and reduction of the charges against him by
the Common Pleas Court of Cambria County. This was
the only defense, after proper investigation available to
him, and this was not available within the time frame of
his Appellant rights.
By order mailed March 26, 2002, the Commission issued an order denying
Petitioner's request for a hearing because his appeal was filed beyond the twenty-
day time limit. On April 9, 2002, Petitioner filed a Petition for Reconsideration
asserting that he "was also advised by his supervisors at S.C.I. Pine Grove that an
Appeal to the Commission should not be filed until his criminal charges were
2

disposed of." By letter dated April 23, 2002, the Commission denied Petitioner's
Petition for Reconsideration. This appeal followed.1

On appeal, Petitioner argues that he is entitled to a hearing nunc pro
tunc because he was advised by a supervisor that he should wait until his criminal
charges were resolved before filing an appeal. Petitioner also argues that the
Commission violated his due process rights because it neither granted him a
hearing nor did it explain its justification for denying his appeal nunc pro tunc.
Therefore, Petitioner asks that this Court reverse the order of the Commission and
remand this case to the Commission for a full evidentiary hearing.

The twenty day time limit for appeals is set forth in Section 951(a) of
the Civil Service Act,2 which provides, in relevant part, that:

(a) Any regular employe in the classified service may,
within twenty calendar days of receipt of notice from the
appointing authority, appeal in writing to the commission
...
71 P.S. § 741.951(a) (emphasis added).

Although his appeal was filed beyond the twenty day time limit set
forth in Section 951 of the Civil Service Act, Petitioner argues that he is entitled to
a hearing nunc pro tunc. Petitioner explains that he waited to file an appeal on the
advice of a supervisor and further asserts that this advice was correct because he

1 Our scope of review of a determination of the Civil Service Commission is limited to
determining whether constitutional rights have been violated, an error of law has been committed
and whether necessary findings of fact are supported by substantial evidence. Chittister v. State
Civil Service Commission, 789 A.2d 814, 817 (Pa. Cmwlth. 2002).
2 Act of August 5, 1941, P.L. 752, added by the Act of August 27, 1963, P.L. 1257, as
amended, 71 P.S. § 741.951(a).
3

was dismissed pursuant to Section 7.173 of the Governor's Code of Conduct,
which provides that:

As soon as practicable after an employe has been
formally charged with criminal conduct related to his
employment with the Commonwealth or which
constitutes a felony, the employe shall be suspended
without pay. If the charge results in conviction in a court
of law, the employe shall be terminated.
4 Pa. Code § 7.173 (emphasis added).

First, we note that this advice, if in fact it was given, would not be
correct. As we stated in Aiello v. Department of Environmental Resources, 551
A.2d 664, 665 (Pa. Cmwlth. 1988), the Governor's Code of Conduct "is not a
statute but an executive order which has been codified in the Pennsylvania Code.
Sever v. Department of Environmental Resources, 514 A.2d 656 (Pa. Cmwlth.
1986). As such, it does not take precedence over statutory provisions to the
contrary." The statutory provision regarding the removal of civil service workers
is Section 807 of the Civil Service Act, which provides that: "No regular employe
in the classified service shall be removed except for just cause." 71 P.S. §
741.807. Furthermore, it is well-settled that a civil service employee need not be
convicted of the crimes with which he has been charged in order to be dismissed.
See Bureau of Corrections v. Grant, 350 A.2d 878 (Pa. Cmwlth. 1976). It is also
well-settled that an employee must be given notice of the charges against him and
a full opportunity to appeal any disciplinary action. Lylo v. Department of
Environmental Resources, 477 A.2d 897, 900 (Pa. Cmwlth. 1984).

Despite the fact that the removal letter mentions the Governor's Code
of Conduct, it also states that: "Irrespective of the work-related criminal charges
against you, the violations of the Code of Ethics ... are sufficient to warrant your
4

removal." (emphasis added). This indicates that Petitioner was discharged for
"just cause." Notwithstanding the Governor's Code of Conduct, the DOC was not
required to wait until Petitioner was convicted of the crimes with which he was
charged before terminating his employment because Petitioner was discharged for
"just cause." Grant. Further, because Petitioner was advised of his right to appeal
his discharge, his due process rights were not violated by the DOC. Lylo.

Second, appeals nunc pro tunc are generally only granted when it is
shown that the appeal was not timely filed because of some wrongful, negligent or
fraudulent conduct on the part of the administrative agency. See Roderick v. State
Civil Service Commission, 463 A.2d 1261, 1263 (Pa. Cmwlth. 1983). In Roderick,
the employee failed to report to work for five consecutive days without giving
notice. Her employer, the Department of Labor and Industry, Office of
Employment Security (OES), notified her by letter that her actions constituted a
voluntary resignation from her job. The employee apparently contacted the OES's
regional director, who allegedly told her to take an appeal for reinstatement in
writing with the manager of the office where she was employed. Some time later,
however, the Chief Counsel of the Department of Labor and Industry called the
employee's attorney to inform the employee that her appeal should have been
taken with the Civil Service Commission rather than OES. However, because the
twenty day time limit had expired, the Chief Counsel informed the employee's
attorney that he would have to file a petition for an appeal nunc pro tunc with the
Commission. The employee's attorney followed the Chief Counsel's advice and
filed an appeal. The Commission, without holding a hearing, denied the
employee's appeal nunc pro tunc.
5

On appeal, we vacated the order of the Commission and remanded the
case to the Commission to conduct a hearing because the employee "clearly
alleged misdirection by the appointing authority with respect to her efforts to
appeal her termination ... The OES ostensibly knew Petitioner was pursuing the
wrong avenue of appeal ... and chose not to divulge the error to her until after
several contacts had been made by Petitioner's lawyer. This compounds the
alleged transgression. In light of this ... we find that Petitioner has made
allegations that warrant a hearing and appropriate findings of fact and conclusions
of law pertaining to the reasons for the untimely appeal and whether they justify
the grant of an appeal nunc pro tunc." Id. at 1263-1264.
Roderick is the only case with a factual situation similar to the one in
the case sub judice. However, unlike Roderick, in this case there is no
corroborative evidence to back up Petitioner's claim that he was actually told to
wait to file an appeal until his criminal charges were resolved. We note that
Petitioner did not make this allegation until he filed his petition for reconsideration
and has not named the person who allegedly gave him this advice or provided any
other evidence to support this claim. Second, even if Petitioner was given this
erroneous information, he was clearly notified in writing that he had to file an
appeal within twenty days. No such notice occurred in Roderick. Third, unlike
Roderick, there is no evidence that the DOC knew Petitioner was being misled
about his appeal rights. For these reasons, Roderick is distinguishable. Therefore,
we conclude that the Commission did not err by denying Petitioner's appeal nunc
pro tunc.

6

Accordingly, the order of the Commission is affirmed.

JIM FLAHERTY, Senior Judge

7

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John H. Williams, Jr.,
:

Petitioner

:

:

v.

: No. 1046 C.D. 2002

:
State Civil Service Commission,
:
(State Correctional Institution at Pine :
Grove, Department of Corrections), :

Respondent

:

O R D E R

AND NOW, November 19, 2002, the order of the State Civil Service
Commission docketed at Appeal No. 22616 and dated March 19, 2002 is hereby
AFFIRMED.

JIM FLAHERTY, Senior Judge