          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Daniel C. Angelucci,                       :
                           Petitioner      :
                                           :
                    v.                     :   No. 620 C.D. 2018
                                           :   SUBMITTED: March 14, 2019
State Civil Service Commission             :
(Pennsylvania Board of Probation           :
and Parole),                               :
                        Respondent         :


BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                                  FILED: April 5, 2019


             Daniel C. Angelucci (Petitioner) petitions for review of an order of the
State Civil Service Commission (Commission) that denied his appeal challenging
his removal from employment with the Pennsylvania Board of Probation and Parole
(Board). We affirm.
             Petitioner worked for the Board as a parole agent 2, regular status,
which entailed supervising parolees and probationers (collectively, “offenders”) in
the community and guiding them to services aimed at preventing their return to
prison. In that capacity, the Board required him to interview his assigned offenders
and their collateral contacts and to record in the appropriate logs the contacts that he
made both in the field and in the office. (April 3, 2018, Adjudication, Findings of
Fact “F.F.” Nos. 11-13.) Offenders were classified into different levels (maximum,
medium, and minimum supervision), with each level requiring a different number
and quality of monthly contact. (F.F. Nos. 23-25.)
             By way of specific paperwork, the Board required Petitioner to create
a Daily Supervision Report, which was to include a record of contacts or attempted
contacts with or pertaining to an offender. (F.F. No. 15.) It also required him to
compile a comprehensive and accurate Record of Interviews, which was to include
a narrative of interviews, observations, test results, and information regarding the
identity of the person with whom he spoke. (F.F. No. 17.) In addition, the Board
required him to compile Monthly Detail Summary Reports identifying both offender
and collateral contacts made for the previous month. (F.F. No. 18.) Petitioner also
had responsibility for the repair and maintenance of an assigned Commonwealth
vehicle and for the completion of reports regarding its operation. (F.F. No. 14.)
             In October 2015, the Board discharged Petitioner from employment
citing violations of its procedures. (F.F. No. 1.) As the Commission summarized,
the Board charged Petitioner with “either fail[ing] to properly record offender
contact notes for contacts he did make or fail[ing] to document other offender
contacts that he was required to make according to the offender’s level of
supervision.” (Adjudication at 26.) The Board also charged him with “falsify[ing]
his Daily Supervision Reports and/or Monthly Automotive Reports, and . . . falsely
record[ing] his state issued vehicle was in for maintenance service on two separate
dates.” (Id.) Following Petitioner’s appeal, the Commission held three days of
hearings at which the Board presented evidence in support of its position that there
was just cause for Petitioner’s termination. Ultimately, the Commission denied
Petitioner’s appeal and his petition for review followed.




                                          2
                On appeal, Petitioner presents two issues: (1) whether the Commission
relied upon findings of fact unsupported by substantial evidence of record in
concluding that the Board established just cause for his removal; and (2) whether the
Commission violated his constitutional rights by prohibiting him from calling
similarly situated employees to testify as to their workloads and treatment and from
subpoenaing and reviewing the personnel files of such employees in the preparation
and presentation of his case.
                Section 807 of the Civil Service Act (Act)1 provides that “[n]o regular
employe in the classified service shall be removed except for just cause.” Although
the Act does not define just cause, courts have held that it relates to merit and touches
upon the competency and ability of an employee to perform his or her duties in a
rational and logical manner. Pa. Bd. of Prob. & Parole v. State Civil Serv. Comm’n,
4 A.3d 1106, 1112 (Pa. Cmwlth. 2010). The appointing authority has the burden to
demonstrate just cause. Id. at 1111 n.8. Whether the employee’s actions constitute
just cause for removal is a question of law subject to our plenary review. Id. at 1112.
In addition, the Commission is the sole factfinder and has exclusive authority to
assess the credibility of witnesses and to resolve evidentiary conflicts. Perry v. State
Civil Serv. Comm’n (Dep’t of Labor & Indus.), 38 A.3d 942, 948 (Pa. Cmwlth.
2011). As an appellate court, we cannot reweigh the evidence or substitute our
judgment regarding which witnesses to believe. Id.
                As an initial matter, we conclude that there is substantial evidence to
support the findings of fact outlining how Petitioner violated (1) Board Procedure
4.01.04, Supervision, Case Record Contents; (2) Board Procedure 4.01.06, Levels
of Supervision; and (3) Board Procedure 1.01.03, Code of Conduct. Substantial


    1
        Act of August 5, 1941, P.L. 752, as amended, 71 P.S. § 741.807.


                                                3
evidence is such relevant evidence that a reasonable mind might accept as adequate
to support the conclusion reached. Daily v. State Civil Serv. Comm’n (Northampton
Cty. Area Agency on Aging), 30 A.3d 1235, 1239-40 (Pa. Cmwlth. 2011).
             Board Procedure 4.01.04 requires a parole agent to enter offender
contact notes within three business days. (F.F. No. 1.) The Board charged Petitioner
with failing to enter nine offender contact notes within that time frame. In support
of the charge, the Board presented the testimony of human resource analyst Erica
Jackson. Jackson testified that she found one incident in June 2015 where Petitioner
did not enter a Daily Supervision Report into the system within three days and
discovered that his reports contained eight offender records for which interviews
were reported to have occurred but for which records of interview were never
completed. (F.F. Nos. 39-45) (citing Notes of Testimony “N.T.” at 51-63 and 65-
66; Reproduced Record “R.R.” at 87-99 and 101-02.)
             As for Board Procedure 4.01.06, which requires documented offender
contacts pursuant to the required level of supervision, the Board charged Petitioner
with failing on fifteen occasions to provide the appropriate level of supervision for
the offenders in his caseload. In support of the charge, the Board presented the
testimony of acting parole supervisor Adina Williams-Jones.             Tasked with
supervising Petitioner from June to August 2015, she testified that there were
multiple places where Petitioner’s June 2015 Monthly Detail Summary Report either
conflicted with the information that he had written onto the Record of Interview (F.F.
Nos. 59-62) or showed that he had not made the minimum number of contacts
required for the offenders’ respective levels of supervision (F.F. Nos. 57-59 and 62-
72). In support of its findings of fact, the Commission referenced the pertinent
passages from Williams-Jones’ testimony. (N.T. at 160-61, 164-70, 174-77, 179,



                                          4
181-82, 184, 186-92, and 204-06; R.R. at 196-97, 200-06, 210-13, 215, 217-18, 220,
222-28, and 240-42.)
            Turning to Board Procedure 1.01.03, Code of Conduct, the Board
charged Petitioner with falsifying his June 2015 Daily Supervision Reports and/or
his June 2015 Monthly Automotive Report. Noting that Petitioner was afforded the
opportunity to provide corrections and to resubmit an amended June 2015 Monthly
Automotive Report, the Commission made numerous findings of fact comparing and
contrasting what he claimed on his revised automotive report with what he claimed
on his June 2015 Daily Supervision Reports. Emphasizing the inconsistencies, the
Commission outlined Jackson’s testimony as to the multiple discrepancies between
the mileage Petitioner recorded in his resubmitted automotive report and his Daily
Supervision Reports. (F.F. Nos. 48-54.) Additionally, Petitioner noted as follows
regarding his resubmitted automotive report:

            “I’m noting more errors when I’m looking at it now. But
            this whole report to me was errors. And there was nothing
            intentional there. It was just out of whack.” N.T. p. 733;
            [R.R. at 770] AA Ex. 23. In addition, he “may have”
            forgotten to include additional trips to and from collecting
            the mail. N.T. p. 734; [R.R. at 771] AA Ex. 7. “And
            another error I made was, when I put on the mileage report
            here, five miles from my house. It’s actually one way. It
            should have been ten miles roundtrip.” N.T. p. 732[; R.R.
            at 769].

(Adjudication at 31-33.)
            Moreover, in addition to the ample evidence outlining the three
categories of violations, Petitioner acknowledged that he had deficiencies. In the
context of his argument that the Board subjected him to disparate treatment, he made
a general concession by stating that he “was not the only Agent with deficiencies;
similarly situated employees of the [Board] working in the same Unit as [Petitioner]


                                         5
also had deficiencies and were not terminated.” (Petitioner’s Brief at 12.) More
specifically, the Commission observed that he “acknowledged he may have made
late or incomplete entries on Records of Interview he prepared.” (F.F. No. 78.)
Regarding the charge that he failed to meet the proper level of supervision for fifteen
offenders during June 2015, Petitioner “acknowledged that he did not have full
compliance with supervision requirements during any month in 2015. N.T. p. 643[;
R.R. at 680].” (Adjudication at 31.)
               Turning to whether there was just cause for termination, we agree with
the Commission that the proven deficiencies related to merit and competency.
Citing the testimony of the district director of the Philadelphia district office, Edward
Furlong, the Commission observed the following regarding the importance of proper
contacts with offenders:

               “It’s a matter of public safety. You’re charged with
               supervising offenders of a certain level. And the primary
               goal is to assist in public safety. We do that by meeting
               with the offender and with others that know the offender
               and deal with the offender on a routine basis.” N.T. pp.
               297-298[; R.R. at 333-34]. If a Parole Agent does not
               make the required contacts, the public safety is at risk.
               N.T. p. 299[; R.R. at 335]. [Further,] he is unable to assist
               the offender with finding employment and achieving a
               law-abiding lifestyle. By making the required contacts, a
               Parole Agent may be able to intervene in time to prevent
               minor issues from becoming major issues that could
               present a safety risk to the community. [Id.]

(Adjudication at 29.)
               Once again citing Furlong’s testimony, the Commission observed the
following regarding the importance of entering contact notes within three days of
the contact:




                                            6
             [E]ntering the notes within three days means the
             information is more likely to be correct and complete; it
             also insures the information will be available to other
             employees in case the assigned Parole Agent is
             unavailable when an issue with the offender arises. N.T.
             at p. 300[; R.R. at 336]. It is important for the information
             in the reports to be truthful and accurate because the
             offender’s liberty is at risk; if the information in the system
             is not accurate, the offender could be taken into custody
             unjustly or inappropriately. N.T. pp. 300-301[; R.R. at
             336-37]. Moreover, continuously entering untruthful
             information reflects poorly on the Parole Agent’s
             character, credibility, and trustworthiness. N.T. p. 301[;
             R.R. at 337].

(Id. at 29-30.)
             Accordingly, in consideration of the ample evidence as to Petitioner’s
deficiencies, we conclude that there was just cause for Petitioner’s termination. As
the Commission observed, Petitioner’s “continued inability to provide the proper
level of contact with offenders, record his contacts with offenders[,] and inability to
accurately document the mileage on his Commonwealth vehicle clearly reflect
negatively upon his competency and ability to perform his job duties.”
(Adjudication at 35.)
             Having determined that there was just cause, we turn to the issue of
whether the Commission erred in failing to consider evidence that similarly situated
employees were not subject to termination for such violations and, instead were
subject to a progressive line of discipline.       First, notwithstanding Petitioner’s
assertions that the Board subjected him to removal and declined to do the same with
similarly situated employees, the present case involves just cause—not
discriminatory treatment. As the presiding commissioner observed at the outset of
the proceedings, the hearing pertained to Section 951(a) of the Act, not subsection



                                           7
(b).2 (N.T. at 13-14; R.R. at 49-50.) In that regard, the Commission stated that any
comparator evidence would be relevant only to the harshness of the penalty and not
to any discrimination claim. (Commission’s October 26, 2016, Letter; R.R. at 842.)
              As for Petitioner’s assertions that he was prohibited from calling
similarly situated employees to testify as to their workloads and treatment, we note
that the Commission denied the Board’s motion to quash Petitioner’s subpoenas for
parole agents Emmett and Grube. Stating that they would be expected to appear and
testify at the hearing, the Commission opined that they could testify as to the
common practices of parole agents thereby impacting the Board’s just cause case.
(Commission’s June 14, 2016, Order; Board’s Brief, Appendix A.) Therefore, it
appears as though Petitioner’s decision not to call them as witnesses was within his
power. In any event, notwithstanding the fact that Petitioner did not do so, he
testified and submitted an exhibit outlining the respective workloads of a list of
parole agents that included those two agents. (Appellant Exhibit AP-6; R.R. at 803.)
              As for the denial of Petitioner’s request to subpoena human relations
analyst Amy Smith, the Commission concluded that her testimony would be
redundant vis-a-vis that of district director Furlong, who could testify as to such
personnel information. In addition, the Commission observed that Petitioner failed
to make an oral request for such a subpoena on the record as required by its
regulations.3 (Commission’s October 26, 2016, Letter; R.R. at 842.)
              Turning to the Commission’s alleged denial of subpoenas for the
personnel files of allegedly similarly situated employees, we note that Furlong

    2
      Section 951 of the Act, 71 P.S. § 741.951, was added by Section 27 of the Act of August 27,
1963, P.L. 1257.
    3
      In pertinent part, the regulation provides: “Subpoenas for new or additional witnesses will
not be issued after a hearing has been commenced and continued unless orally requested on the
record at the hearing and approved by the Commission . . . .” 4 Pa. Code § 105.14a(a)(4).


                                               8
testified as to his review of the subpoenaed personnel file of agent Wolfe. Furlong
concluded that Petitioner and Wolfe were not similarly situated such that a
comparison in terms of discipline was not meaningful. (Adjudication at 34-35.)
Specifically, Furlong observed that Petitioner had a record of prior and related
disciplinary actions whereas Wolfe appeared to have no such history. Additionally,
Furlong noted that Petitioner’s June 2015 violations were investigated and
confirmed whereas those of Wolfe were still being investigated. Further, Furlong
noted that Petitioner was charged with falsifying documents that he created whereas
Wolfe was not similarly accused.4 (Id. at 34.) Accordingly, the Commission
considered evidence regarding disparate treatment, but did not find the comparator
evidence to be persuasive as to the harshness of the penalty imposed.
               Moreover, as the findings of fact reflect, management already
administered progressive discipline in an effort to aide Petitioner in curing his
deficiencies and retaining his position. See F.F. No. 4 (November 2004 three-day
suspension with warning regarding future violations); F.F. Nos. 5-7 (July 2014,
December 2014. and February 2015 counseling sessions with warnings regarding
future violations); F.F. No. 8 (May 2015 three-day suspension with final warning
that “[r]epeated offenses of the same or similar nature that occur at any point after
the date of your receipt of this letter will have the probable consequence of your
removal from employment.”); and F.F. No. 10 (May 2015 counseling session).
               Finally, we turn to Petitioner’s allegations pertaining to the effect of a
final warning date on the Board’s power to terminate.                    By way of background,

    4
       In its charging letter, the Board stated that, standing alone, any of the infractions relating to
falsification would warrant removal from employment. (F.F. No. 1.) See Davis v. Civil Serv.
Comm’n of the City of Phila., 820 A.2d 874, 878 (Pa. Cmwlth. 2003) (holding that “[r]epeated
dishonesty, coupled with discredit to the [employer] and co-workers, is more than sufficient to
constitute just cause for dismissal.”)


                                                   9
Petitioner in a grievance challenged the Board’s May 2015 imposition of a three-day
suspension with a final warning. The Board in its August 2015 decision resolving
the grievance stated that its decision was the equivalent of a three-day disciplinary
suspension. In addition, it stated: “This is a FINAL WARNING. Repeated offenses
of the same or similar nature that occur at any point after the date of your receipt of
this letter will have the probable consequence of your removal from employment.”
(August 6, 2015, Alternative Discipline in Lieu of Suspension letter, Board Ex. AA-
31; R.R. at 837) (Emphasis added.) Petitioner now argues that the Board in its
August 2015 decision reset the final warning date to August 6, 2015, such that it had
no right to terminate him for anything that occurred before that date. We disagree.
While it is true that the decision contains the phrase “after the date of your receipt
of this letter,” actionable behavior that occurs before a final-warning date
nonetheless can constitute just cause. An appointing authority can fire an employee
for just cause, having never issued that person a final warning. It remains true that
“[e]ven a single instance of misconduct or an error of judgment can constitute just
cause for dismissal if it adversely reflects on the fitness of a person for his duties.”
Davis v. Civil Serv. Comm’n of the City of Phila., 820 A.2d 874, 878 (Pa. Cmwlth.
2003).
             Accordingly, inasmuch as the credited evidence supports the
Commission’s findings and legal determination of just cause and Petitioner was not
deprived of a fair hearing, we affirm.



                                         _____________________________________
                                         BONNIE BRIGANCE LEADBETTER,
                                         Senior Judge



                                          10
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Daniel C. Angelucci,                    :
                        Petitioner      :
                                        :
                  v.                    :   No. 620 C.D. 2018
                                        :
State Civil Service Commission          :
(Pennsylvania Board of Probation        :
and Parole),                            :
                        Respondent      :

                                     ORDER


            AND NOW, this 5th day of April, 2019, the order of the State Civil
Service Commission is hereby AFFIRMED.



                                      _____________________________________
                                      BONNIE BRIGANCE LEADBETTER,
                                      Senior Judge
