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JOHN J. O'PEIL v. COMMONWEALTH PENNSYLVANIA (06/05/74)

decided: June 5, 1974.

JOHN J. O'PEIL, PLAINTIFF,
v.
COMMONWEALTH OF PENNSYLVANIA, STATE CIVIL SERVICE COMMISSION, DEFENDANT



Original jurisdiction in case of John J. O'Peil v. State Civil Service Commission.

COUNSEL

Frank J. McDonnell, for plaintiff.

Barnet Lieberman, Assistant Attorney General, for defendant.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Blatt.

Author: Blatt

[ 13 Pa. Commw. Page 471]

John J. O'Peil (plaintiff) filed an action in mandamus in the Dauphin County Court of Common Pleas against the State Civil Service Commission (Commission), which was transferred to this Court pursuant to Section 503(b) of the Appellate Court Jurisdiction Act, Act of July 31, 1970, P.L. 673, 17 P.S. § 211.503(b) (ACJA). It is before us now on the Preliminary Objections of the Commission so that we must, of course, accept as true the well-pleaded factual averments of the plaintiff, even though not admitting the pleader's conclusions of law. Commonwealth ex rel. Powell v. Aytch, 10 Pa. Commonwealth Ct. 218, 309 A.2d 734 (1973).

The plaintiff states that he was a Corporation Tax Officer II in the Department of Revenue (Department)

[ 13 Pa. Commw. Page 472]

    with regular Civil Service Status and that, although he was given a "very good" performance evaluation for the year 1972, the Department wrongly failed to grant him a merit salary increment due January 1, 1973 and payable January 18, 1973. On February 5, 1973 and on February 9, 1973 the plaintiff filed written requests for a hearing with the Civil Service Commission alleging that the Department had discriminated against him by not granting the increment claimed.

In a letter dated March 20, 1973 the Executive Director of the Commission informed the plaintiff that the Commission had considered his request at a meeting on March 15, 1973 but had denied a hearing. He thereupon filed this action in mandamus asking this Court to order the Commission to hold a public hearing pursuant to Section 951(b) of the Civil Service Law, Act of August 5, 1941, P.L. 752, as amended, 71 P.S. § 741.951(b), which provides that: "Any person who is aggrieved by an alleged violation of section 905.1 of this act n.1 may appeal in writing to the commission within twenty calendar days of the alleged violation. Upon receipt of such notice of appeal, the commission shall promptly schedule and hold a public hearing. As soon as practicable after the conclusion of the hearing, the commission shall report its findings and conclusions to the aggrieved person and other interested parties. If such final decision is in favor of the aggrieved person, the commission shall make such order as it deems appropriate to assure the person such rights as are accorded him by this act." (Footnote omitted.)

Section 905.1 of the Civil Service Law, 71 P.S. § 741.905a, referred to above, prohibits discrimination as follows: "No officer or employe of the Commonwealth shall discriminate against any person in recruitment, examination, appointment, training, promotion, retention or any other personnel action with respect to the classified service because of political or religious

[ 13 Pa. Commw. Page 473]

    opinions or affiliations because of labor union affiliations or because of race, national origin or other ...


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