Appeal from the Order of the State Civil Service Commission in case of Appeal of David J. Humphreys, No. 1236.
Emerson G. Hess, for appellant.
J. Justin Blewitt, Deputy Attorney General, with him James J. Morley, Assistant Attorney General, for appellee.
Feldmann and Ciotola, Joseph D. Shein, Shein, Mele & Brookman, Morton Fromm, John J. Dunn and James W. Reynolds, for amicus curiae, Pennsylvania Joint War Veterans Council.
Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. President Judge Bowman did not participate. Opinion by Judge Kramer.
This is an appeal from an Order of the State Civil Service Commission (Commission) dismissing the appeal of David J. Humphreys (Humphreys) from his termination of service as an "Appeals Referee I, provisional status," by the Secretary of Labor and Industry (appointing authority), effective at the close of business December 1, 1971.
Humphreys was appointed a provisional Appeals Referee I with the Bureau of Employment Security, Department of Labor and Industry of the Commonwealth on January 15, 1970. During the period of almost two years in which he was employed in that capacity, he was rated by his superiors on the required performance evaluation reports as being "very good" to "excellent." During the spring of 1971, the Commission held an examination for eligibility for appointment, in the classified service, to the position of "Appeals Referee I," and on October 1, 1971, published a certification of eligibility list in accordance with the results of the examination. On the date of the list, there were two such positions available in Administrative District Seven.
The record clearly shows that when Humphreys was first appointed, he resided in District Seven and during most of his term of service, was in residence there. However, at the time of the examination and at the time of the certification of the eligibility list for District Seven, he had become a resident of District Five.
The eligibility list for District Seven listed the names of three successful candidates who resided in the district, and thereafter listed "Names From Other Administrative Districts . . ." under which the name of Humphreys appears.
The appointing authority selected the first, or top, name on the eligibility list (Stonage) who was appointed to the position of Appeals Referee I, probationary status in the classified service. Stonage had also been a provisional appointee to that same position prior to his selection. As hereinbefore mentioned, at the time of these events, there were two openings for appointments to the position of Appeals Referee I. The second appointment was given by the appointing authority to a man named Murray, who was listed below Humphreys' name on the eligibility list, but under a different subtitle, viz. "Informal Names." In the Murray appointment to Appeals Referee I, the appointing agency did not create a second eligibility list, but rather, followed a procedure established by the rules of the Commission (4 Pa. Code 95.7(b)(3)) under which vacancies are filled by appointment of probationary or regular employes already within the classified service, whose names appear on the eligibility list.
Humphreys was notified by the Commission that he was "not within reach for a Civil Service appointment" and therefore, was advised of the termination of his service as an Appeals Referee I. Thereafter, Humphreys filed a timely appeal under Section 951 of the Civil Service Act, Act of August 5, 1941, P.L. 752, 71 P.S. § 741.951. Hearings were held before ...