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FRANK R. MAGNELLI v. COMMONWEALTH PENNSYLVANIA (03/16/78)

decided: March 16, 1978.

FRANK R. MAGNELLI, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, STATE CIVIL SERVICE COMMISSION AND COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, RESPONDENTS



Original jurisdiction in case of Frank R. Magnelli v. Commonwealth of Pennsylvania, State Civil Service Commission and Commonwealth of Pennsylvania, Pennsylvania Liquor Control Board.

COUNSEL

Walter K. Swartzkopf, Jr., for petitioner.

Barbara G. Raup, Assistant Attorney General, for respondent, Pennsylvania Civil Service Commission.

Kenneth W. Makowski, Assistant Attorney General, for respondent, Pennsylvania Liquor Control Board.

Judges Crumlish, Jr., Wilkinson, Jr. and Mencer, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson

[ 34 Pa. Commw. Page 336]

Petitioner, an Enforcement Officer III with the Pennsylvania Liquor Control Board (Board), has filed with this Court an original action in the nature of mandamus. Both the Board and the Pennsylvania State Civil Service Commission (Commission) have filed

[ 34 Pa. Commw. Page 337]

    preliminary objections to the petitioner's suit against them in addition to which the Commission has filed a motion to dismiss. For the reasons discussed below, we overrule the preliminary objections and the motion to dismiss, and order that respondents file answers to the petitioner's Petition for Review.

On August 9, 1974, the position of Enforcement Officer VI (Director of Enforcement) with the Board became vacant, and remained so until April 9, 1976. At that time the Commission, upon the Board's recommendation, authorized the provisional appointment of Paul Landau to that position. Prior to this appointment, the requirements for Enforcement Officer VI had been altered so as to eliminate the need for prior service with the Board and to broaden the scope of acceptable experience. Mr. Landau continues to serve as a provisional appointee.

On January 25, 1974, the position of Enforcement Officer V (Assistant Director of Enforcement) became vacant. John Pensiero and Robert Israel were appointed "acting" Assistant Directors on June 28, 1976. In addition, a position as Enforcement Officer IV had become vacant on August 12, 1974 with the transfer of Mr. Pensiero from a position with the Board's central office to a district supervisor's job.

Petitioner submitted applications for all three positions on October 26, 1976. The petitioner also sent letters to the Board and the Commission, attached to the Petition for Review as Exhibits "A" and "B," requesting that Mr. Landau be removed from his provisional status, and that all three positions be made available to qualified Board enforcement officers in accordance with the provisions ...


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