McCann v. Barger

314 A.2d 35, 11 Pa. Commw. 517, 1974 Pa. Commw. LEXIS 1136

• Court: Commonwealth Court of Pennsylvania
• Decided: January 11, 1974
• Docket: Appeal, No. 714 C.D. 1973
• Status: Published

Opinion

Opinion by

Judge Rogers,

James L. McCann, an enlisted member of the Pennsylvania State Police, commissioned a Lieutenant on September 21,1972, here appeals from a personnel order of the Commissioner of the Pennsylvania State Police made May 2, 1973, without Court-Martial, reducing Mc-Cann’s rank to that of Trooper. The appellant asserts that he is entitled to be heard by court-martial. The Commissioner’s action was based upon the asserted violations by former high ranking officers of the Force of regulations which, if observed, would here render Mc-Cann ineligible to take the examination for Lieutenant, his passing of which was a requisite to commissioning. It is the position of the Commissioner, upon the advice of a Deputy Attorney General, that a court-martial was not required in these circumstances and that the allegedly improper commissioning could be set aside by administrative order. The law is plainly to the contrary. Section 205(e) of the Administrative Code of 1929, as amended, Act of April 9, 1929, P. L. 177, 71 P.S. §65 (e) provides: “No enlisted member of the Pennsylvania State Police shall be dismissed from service or reduced in rank except by action of a (Jowl-Martial held upon the recommendation of the Commissioner of the Pennsylvania State Police and the Governor.”¹ (Emphasis supplied.)

We therefore make the following

Order

And now, this 11th day of January, 1974, the appeal of Lieutenant James L. McCann is sustained; the record is remanded to the Commissioner of the Pennsylvania State Police for such further action in compliance with law as the Commissioner shall deem appropriate.

1 The Commissioner’s personnel order here appealed from reads: “Lieutenant James L. McCann, Troop “S”, Milesburg, is hereby reduced in rank to the grade of Trooper.” (Emphasis supplied.)