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NICHOLAS CRINITI v. COMMONWEALTH PENNSYLVANIA (03/31/78)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 31, 1978.

NICHOLAS CRINITI, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION (PENNDOT), RESPONDENT

Appeal from action of dismissal by Department of Transportation and denial of grievance in case of In Re: Nicholas Criniti.

COUNSEL

Nino V. Tinari, 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., Mencer and Blatt, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 34 Pa. Commw. Page 512]

Nicholas Criniti (Criniti), at a time when he was an employe of the Pennsylvania Department of Transportation (PennDOT), was indicted by the Philadelphia

[ 34 Pa. Commw. Page 513]

County special investigating grand jury for conspiring to misapply government property in connection with his employment with PennDOT. On March 15, 1975, Criniti pled guilty to the charges which formed the basis for these indictments but withdrew his guilty plea on December 20, 1976.

As a result of Criniti's guilty plea, the Director of the Bureau of Personnel for PennDOT, by letter dated June 17, 1976, notified Criniti that he was dismissed from his Highway Foreman II position, effective with the close of business on June 18, 1976.

Criniti, pursuant to the Memorandum of Understanding for the Maintenance and Trades Unit for first-level supervisors, timely appealed his termination through the grievance procedure and, by letter dated August 18, 1976, he was informed that his grievance was being denied at Step IV of the grievance procedure.*fn1 On March 9, 1977, Criniti filed with this Court a petition for review and application for preliminary

[ 34 Pa. Commw. Page 514]

    injunction, seeking immediate reinstatement to his position with PennDOT.

On April 1, 1977, PennDOT filed preliminary objections and a motion to quash Criniti's petition for review. On June 13, 1977, after hearing, this Court denied Criniti's application for a preliminary injunction.

One of the preliminary objections advanced by PennDOT is that Criniti's petition for review was untimely filed and therefore this Court is without jurisdiction to consider this matter. We must agree; therefore, we do not pass upon the other contentions raised by PennDOT.

[ 34 Pa. Commw. Page 515]

Under Pa. R.A.P. 1512(a), a petition for review must be filed within 30 days after the entry of an order. Since the timeliness of an appeal is jurisdictional, the courts are without power to extend the appeal period unless there is fraud, its equivalent, or a breakdown in the court's operation through a default of its officers. Drafts v. Bennett Shelburne Co., 26 Pa. Commonwealth Ct. 76, 362 A.2d 464 (1976). The contract provisions set out in footnote 1, supra, disclose that an appeal from an unfavorable decision at Step IV in the case of a discharge may be initiated by the union within 7 days after receipt of the Step IV decision. Unlike appeals taken from earlier steps in the grievance procedure, the individual grievant cannot appeal beyond the Step IV decision.

[ 34 Pa. Commw. Page 516]

Thus, whether we consider August 18, 1976, the date Criniti was informed that his grievance was being denied at Step IV of the grievance procedure, or the seventh day thereafter, when Criniti's union failed to appeal the unfavorable decision at Step IV, as the date of the final determination resulting in Criniti's dismissal from his Highway Foreman II position, it is obvious that more than 30 days had elapsed before March 9, 1977, when he filed his petition for review. Consequently, his petition for review was not timely filed.*fn2 Ozolins v. Department of Page 516} Education, 30 Pa. Commonwealth Ct. 70, 372 A.2d 1230 (1977).

Accordingly, we enter the following

Order

And Now, this 31st day of March, 1978, the motion to dismiss filed by the Department of Transportation of the Commonwealth of Pennsylvania is hereby granted, and the petition for review filed by Nicholas Criniti is hereby dismissed.

Disposition

Motion granted. Petition dismissed.


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