Dissenting Opinion by
Judge Kramer:I respectfully dissent. With the benefit of the majority and concurring opinions, I have read and reread the short record in this case. It is my opinion that because the evidence presented against Mr. Wasniewski, the appellant, is so woefully weak and lacking in substantive evidence, I must conclude that the charges made against him were not supported by substantial evidence, as required by law.
Section 904 of the Civil Service Act, Act of August 5, 1941, P. L. 752, art. IX, Section 904, as amended, *17771 P.S. §741.904, states in pertinent part: “No person in the classified service shall he a member of or . . . alternate to any political convention, . . . nor shall he serve as a member of any committee of any political party, . . . nor shall he be within a polling place or within 50 feet thereof, except for the purpose of carrying out official duties and of ordinary travel or residence during the period of time beginning with one hour preceding the opening of the polls for holding such election and ending with the time when the election officers shall have finished counting the votes and have left the polling place for the purpose of depositing the election material in the place provided by law for that purpose. . . . Provided, however, That the rights of any individual as a citizen are not impaired hereby, and the prerogative to attend meetings, to hear or see any candidate or nominee, nor to express one’s individual opinion, shall remain inviolate.”
The State Civil Service Commission (Commission) is subject to the Administration Agency Law, Act of June 4, 1945, P. L. 1388, as amended, 71 P.S. §1710.51. That statute provides direction on our scope of review, at 71 P.S. §1710.44, where it is stated: “[T]he court shall affirm the adjudication unless it shall find that the same is in violation of the constitutional rights of the appellant, or is not in accordance with law, . . . or that any finding of fact ... is not supported by substantial evidence.”
The only tangible evidence produced was two letters written by the appellant; and the only prosecuting witness was an investigator for the Commission, who testified on his investigation conducted after the alleged events occurred, and who was not present at or near the polling place in question on November 2, 1971.
Both letters are set forth in two footnotes to the majority opinion. The first clearly discloses the appellant’s understanding that as a temporary hourly em-
*178ployee he was not included in the classified service. There is nothing in the record which discloses any disagreement by his employer with that understanding. As a matter of fact, his employer, the Liquor Control Board (Board), thereafter, upgraded him by appointing him to the full-time position of Liquor Store Clerk, with probationary status. In view of the first letter, the action by the Board would lead any reasonable man to believe that he need only resign his political party office after such a promotion.
Admittedly, the second letter of formal resignation from his political party position was sent approximately forty-two days after the appellant received his promotion, and after, under his understanding, he entered the classified service. However, without some showing of intentional defiance or injury to his employer, such a delay hardly seems an unreasonable delay or sufficient grounds for dismissal. There is not one piece of evidence that the appellant was informed or warned that he must, under threat of dismissal, resign prior to the actual date he sent the second letter.
The investigation into the affairs of the appellant came as a result of a handwritten and unsigned letter to the Commission. The Commission launched an investigation, and sent out an investigator to seek out the facts on appellant’s political activities.
The charge was that appellant had been within fifty feet of a polling place for political purposes on election day. The extremely brief presentation by the Commission (entailing some sixteen questions and answers of the investigator) is completely devoid of any substantial evidence which indicates that appellant was improperly at or near the polling place on November 2, 1971. At best the investigator’s testimony contains inferences, which, if unanswered, might permit a reasonable man to believe a wrongdoing, on a circumstantial evidence basis. In this case, however, the infer*179enees were answered. My reading of the record leads me to conclude that the testimony of appellant’s witnesses satisfactorily explained his noninvolvement in politics, his resignation from political activities and his socializing in the evening after the election returns had been submitted. In saying this, I do not mean to imply that I am substituting my findings for that of the Commission; what I am saying is that, in using the reasonable man test (see A. P. Weaver and Sons v. Sanitary Water Board, 3 Pa. Commonwealth Ct. 499, 284 A. 2d 515 (1971)) there is not substantial evidence in this case to support the adjudication of the Commission.
The right to seek and keep employment is a fundamental right of every citizen which should not be denied lightly. To dismiss this employee on the evidence presented in this case is, to me, not only grossly unfair but unsupportable under the law.
I would also question the constitutionality of Section 904, set forth hereinbefore. In doing so, I acknowledge the need for vigilant protection against infringement upon the principle that a public employee is entitled to a right to work free from political pressure so as to permit the most effective public service. However, this must be balanced against the public servant’s other basic and fundamental constitutional rights and freedoms. The question arises whether these fundamental rights and freedoms should be restricted for all because of the possible abuse by the few who would improperly interfere with public servants.
Experience, changing conditions and sometimes the mere passage of time causes a reappraisal of principles which at one time may have appeared to be unassailable. Under new statutes in this Commonwealth, even civil service employees are insulated and protected from prior existing possible political pressure by their recently organized labor unions. Courts, in recent deci*180sions, have commenced to scrutinize statutory infringements to public employees’ rights to free speech and association. The majority in this case relies, in part, upon United Public Workers v. Mitchell, 330 U.S. 75, 67 S. Ct. 556 (1947) ; but on July 31, 1972, a three-judge panel of the United States District Court, in the case of National Association of Letter Carriers v. United States Civil Service Commission, at No. 577-71, 41 U.S.L.W. 2069 (D.D.C. July 31, 1972) declared certain clauses of the Federal Hatch Act (5 U.S.C. §7324(a) (2)) to be unconstitutionally vague. In so doing it also said: “However, even if Mitchell’s holding is considered binding, as the defendants contend, it is inconsistent with subsequent decisions delineating First Amendment freedoms. . . . The decisions, coupled with changes in the size and complexity of public service, place Mitchell among other decisions outmoded by passage of time.”
From my point of view, the public employees’ rights to free speech and association should remain inviolate, so long as their actions do not interfere with their public service and their duties to their employer. The firing of a public employee in the classified service because he may have been within fifty feet of a polling place on election day for an hour and a half does such violence to that principle that I must register this dissent.