Appeal from the Order of the State Civil Service Commission in case of Diana M. Lynch v. Department of Public Welfare, No. 1787.
Bruce E. Endy, with him Leonard Spear, and Meranze, Katz, Spear & Wilderman, for appellant.
Joseph F. Strain, with him Cecil Maidman, Deputy Attorney General, Michael von Moschzisker, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellee.
Judges Crumlish, Jr., Wilkinson, Jr. and Mencer, sitting as a panel of three. Opinion by Judge Crumlish, Jr.
[ 30 Pa. Commw. Page 236]
This is an appeal by Diana M. Lynch (Appellant) from an adjudication of the State Civil Service Commission (Commission) dismissing her appeal from the denial of a promotion, which denial she alleged was motivated by sex discrimination. The issue is whether the Commission committed an error of law by refusing to hear testimony on the relative qualifications of Appellant and the person who was chosen for the position. We hold that it did, and reverse and remand.
Since May 9, 1974, Appellant has been a Claims Settlement Agent I in the Social and Rehabilitative Services
[ 30 Pa. Commw. Page 237]
Unit of the Department of Public Welfare (DPW) in Philadelphia, having previously worked for three and a half years for DPW through the Delaware County Board of Assistance. On October 14, 1975, Appellant's supervisor (Supervisor) posted a notice of job vacancy for the position of Claims Settlement Agent II. Appellant was among five persons who applied for the position; one of the five, Frederick Gottfried, who had almost two years more experience than Appellant in the position of Claims Settlement Agent I, was chosen for the promotion.
Appellant appealed to the Commission under subsections (a) and (b) of Section 951 of the Civil Service Act (Act)*fn1 on two grounds. First, she alleged that she was better qualified for the vacant position than Gottfried and that his promotion therefore violated certain DPW regulations*fn2 which provide that promotions under Section 501*fn3 of the Act "must be demonstrably consistent with promotion of the best qualified personnel" and that in ranking and evaluating applicants for promotion, the criteria would include, inter alia, "specific qualifications equated to the vacant position" and "efforts at self-improvement." Second, she contended that she was denied the promotion because of her sex, a non-merit factor, in violation of Section 905.1*fn4 of the Act, which provides:
[ 30 Pa. Commw. Page 238]
No officer or employee of the Commonwealth shall discriminate against any person in . . . promotion . . . because of . . . non-merit factors.
At the Commission hearing, Appellant's counsel repeatedly attempted to introduce testimony relative to the qualifications of Appellant and Gottfried, but the Acting Chairman (Chairman) refused to admit it. The Chairman stated -- and DPW now argues -- that although Appellant has a right to appeal to the Commission under subsection (b) of Section 951, she has no appeal right under subsection (a), and that therefore the sole issue properly before the Commission was that of discrimination, ...