Appeal from the Order of the State Civil Service Commission in case of Lawrence R. Ellis v. State Civil Service Commission, No. 1924.
Michael I. Levin, with him Cleckner & Fearen, for petitioner.
Frank A. Fisher, Jr., Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for respondent.
Judges Wilkinson, Jr., Rogers and DiSalle, sitting as a panel of three. Opinion by Judge Rogers.
[ 33 Pa. Commw. Page 355]
Lawrence R. Ellis has appealed an order of the State Civil Service Commission (Commission) upholding the action of Department of Transportation (PennDOT) furloughing him from his employment.
Ellis was one of eight PennDOT employes of Highway District 5-0 having the civil service classification of Designer II. His duties, which included that of approving or disapproving designs, were such that he was called a squad leader.*fn1 Because of lack of work, PennDOT furloughed Ellis and two other District 5-0 Designer IIs, effective April 1, 1976.
[ 33 Pa. Commw. Page 356]
By Section 3(s) of the Civil Service Act, 71 P.S. § 741.3(s), the only justifications for furlough are lack of work or funds. Department of Public Welfare v. Magrath, 14 Pa. Commonwealth Ct. 257, 321 A.2d 403 (1974). Section 802 of the Act, 71 P.S. § 741.802, further provides, inter alia, that:
In case a reduction in force is necessary in the classified service, no employe shall be furloughed while any probationary or provisional employe is employed in the same class in the same department or agency, and no probationary employe shall be furloughed while a provisional employe is employed in the same class in the same department or agency. An employe shall be furloughed only if at the time he is furloughed, he is within the lowest quarter among all employes of the employer in the same class on the basis of their last regular service ratings, and within this quarter he shall be furloughed in the order of seniority. . . . (Emphasis added.)
Section 3(g) of the Act, 71 P.S. § 741.3 defines "class" or "class of positions" as:
[A] group of positions in the classified service which are sufficiently similar in respect to the duties and responsibilities thereof that the same descriptive title may be used for each of such positions, the same requirements as to experience, knowledge and ability are demanded of incumbents, the same tests of fitness may be used to choose qualified appointees, and the same schedule of compensation may be made to apply with fairness under like working conditions.
Ellis first says that PennDOT failed to make a prima facie case establishing a lack of work as justification for his furlough. We disagree. PennDOT's ...