DocketNumber: Appeals, Nos. 696 C.D. 1981 and 697 C.D. 1981
Citation Numbers: 65 Pa. Commw. 382, 442 A.2d 416, 1982 Pa. Commw. LEXIS 1143
Judges: Blatt, Craig, Williams
Filed Date: 3/18/1982
Status: Precedential
Modified Date: 10/18/2024
Opinion by
Robert Sullivan and Carl Baer appeal from the Civil Service Commission’s refusal to grant them hearings to contest a termination of their employment with the Pennsylvania Department of Transportation.
Because we have no evidentiary record whatsoever, we must consider the allegations of the appeal letter which the employees’ attorney filed with the'Commission. It avers that the department hired Baer in 1962 and Sullivan in 1963, originally classifying each of them as a Construction Inspector I. Baer was promoted to Construction Inspector II in 1963 and to Construction Inspector III in 1970. During 1970, Sullivan was promoted to Construction Inspector II and then to Construction Inspector III. In 1978, because of insufficient work, the department first bumped both of them down to Construction Inspector II and then furloughed them, according to the appeal letter..
In April, 1980, the department again recalled them for temporary employment to do the same work they did as Construction Inspectors II, and, in November, 1980, they were again “laid off” because of insufficient work.
Asserting that such November, 1980 termination was in violation of the Civil Service Act (Act),
Section 951(a) provides, in pertinent part that, “[a]ny regular employe in the classified service may
‘Regular employe’ means an employe who has been appointed to a position in the classified service in accordance with this act after completing his probationary period.
Allegedly, these employees were in the classified service, they had successfully completed their probationary periods, they were never permanently separated from the classified service, and all of the layoffs were due to insufficient work. These layoffs are alleged to have been furloughs,
The department asserts that Sullivan and Baer were recalled to “temporary positions”
The department has confused the nature of the job with the status of the employee. The permanent or temporary nature of the job does not affect the status of the employee who fills it. If an employee has regular employee status, that employee has standing to appeal under Section 951(a).
In Shapiro, the employee was originally hired as an emergency appointee. After thirty days he was given provisional status, under Section 604 of the Act,
In Hunter, the Supremo Court had said that the legislature intended to preclude employees who had not yet emerged from probationary status from appealing under Section 951 (a). ':
However, the employees here were not provisional employees under Section 604, nor were they probationary employees under Section 603. Furthermore, the recalls were not emergency appointments under Section 606.
Although the facts are distinguishable, the reasoning in Shapiro is applicable here — the employe’s status is controlling, not the duration of the work. Nothing in the Act converts these regular employees to a hybrid temporary employee- -status. And any regular employee is entitled to appeal any termination under Section 951(a).
Accordingly, we reverse the orders of the Commission and remand for hearings to determine whether the allegations are true, by considering testimony and records, and for the making of findings and conclusions and a decision.
Order in 696 C.H. 1981
Now, March 18, 1982, the order of the State Civil Service Commission at Appeal No. 3358 dated February 19, 1981, denying Robert Sullivan a hearing, is
Order in 697' C.D. 1981
Now, March 18, 1982, the order of the State Civil Service Commission at Appeal No. 3359 dated February 19,. 1981, denying Carl Baer a hearing, is reversed, and the case is remanded for hearing and consideration with the opinion of this court.
The Commission allegedly dismissed appeals from tlie 1978 furloughs because of lack of jurisdiction and from the 1979 furloughs because not timely filed. Accepting the averments, the non-pursuance of appeals apparently did not result in final removals so as to end the pre-existing status.
Act of August 5, 1941, P.L. 752, as amended, 71 P.S. §§741.1-741.1002.
71 P.S. §741.951 (a).
Section 809 of the Act, 71 P.S. §741.809, provides :
Seniority is established for each class in which an employe holds or has held civil service status. Senority in each class begins with the date of first civil service employment in that class and includes periods of subsequent employment (civil service or provisional) in other classes in the same or higher grade.
The section has clearly been punctuated incorrectly as it appears in the pamphlet laws. The first sentence and the second sentence to “this act” constitute one sentence, as we have set it forth in the text.
71 P.S. §741.3k.
Section 3(s) of the Act, 71 P.S. §741.3s, provides:
‘Furlough’ means the termination of employment because of lack of funds or of work.
Section 3 (v) of the Act, 71 P.S. §741.3v, provides:
‘Removal’ means the permanent separation from the classified service of an employe who has been permanently appointed.
Section 801 of the Act, 71 P.S. §741.801 provides: '
An employe may be temporarily separated from the classified service through furlough, leave of absence or suspension and may be permanently separated through rejection on probation, retirement, resignation or removal.
Section 3(f) of the Act, 71 P.S. §741.3i, provides:
‘Temporary position’ means a position in the classified service which arises out of temporary pressure of extra work and is likely to continue for a period of less than six months
Section 3(h) of the Act, 71 P.S. §741.3h, provides:
‘Permanent position’ means a position in the classified service which is likely to be needed continuously for a period of six months or more.
71 P.S. §741.604. There was no six-month test period involved here.
71 P.S. §741.603.
71 P.S. §741.606.