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FRED GORTON ET AL. v. COMMONWEALTH PENNSYLVANIA (05/09/78)

decided: May 9, 1978.

FRED GORTON ET AL., PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, STATE CIVIL SERVICE COMMISSION; THE DEPARTMENT OF PUBLIC WELFARE ET AL., RESPONDENTS



Original jurisdiction in case of Fred Gorton, et al. v. Commonwealth of Pennsylvania, State Civil Service Commission; Department of Public Welfare; Bureau of Personnel, Office of Administration.

COUNSEL

Stephen A. Sheller, with him Bruce M. Ludwig, for petitioners.

John D. Raup, Assistant Attorney General, with him Robert P. Kane, Attorney General, for respondents.

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

Author: Bowman

[ 35 Pa. Commw. Page 321]

Petitioners have filed a "complaint in mandamus and petition for review" seeking judicial review of a refusal by the Civil Service Commission (Commission) to investigate and hear petitioners' grievances concerning their assignment, on an allegedly permanent basis, to duties and responsibilities allocable to a position classified higher than that to which they, as Commonwealth employees, were nominally designated.

Respondents have raised preliminary objections seeking dismissal of both the complaint and petition for review on the grounds that petitioners have failed to state a basis upon which relief can be granted. By virtue of this demurrer we accept as true all well-pleaded material facts contained within the complaint. Department of Public Welfare v. Adams County, 30 Pa. Commonwealth Ct. 164, 373 A.2d 143 (1977).

Petitioners consist of employees of the Commonwealth who were appointed to their positions by the Department of Public Welfare, and are regular employees in "classified service" within the meaning of Section 3(d) of the Civil Service Act (Act), Act of August 5, 1941, P.L. 752, as amended, 71 P.S. ยง 741.3(d).*fn1 Named as respondents are the Department of Public Welfare (Department), the ostensible appointing authority; the Bureau of Personnel, Office of Administration (Bureau), established as part of the Governor's Office to develop and maintain a classification

[ 35 Pa. Commw. Page 322]

    program for all agencies under the Governor's jurisdiction; and the Commission whose statutory powers and duties are hereinafter discussed.

In addition to the relevant statutory provisions the parties' relations are controlled by a collective bargaining agreement consummated in August of 1975 by petitioners' bargaining representative and the Commonwealth, Article XXVII of which outlines the respective positions with regard to the classification of employees. Section 1 of this Article provides in pertinent part that

[t]he position classification plan consists of a schedule of class titles with class specifications for each class which define and describe representative duties and responsibilities and sets forth the minimum requirements and qualifications essential to the performance of the work of the class. If an employe considers his position to be improperly classified, the employe shall prosecute an appeal for a reallocation of his position through the fourth step of the grievance procedure set forth in this Agreement. The decision of the Employer shall be final, binding, and determinative of the issue.

Section 2 of the same Article contains the following caveat:

The Union recognizes the right of the Employer to direct its working force, which includes the assignment of work to individual employes, and it further recognizes that such assignments may include work outside an employe's classification. However, it is understood that assignments outside of classification shall be made in a manner consistent with the Employer's operations and organizational requirements.

[ 35 Pa. Commw. Page 323]

Section 2 goes on to make provision for payment in the event of temporary assignment to out-of-classification work, and establishes arbitration as the procedure by ...


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