decided: March 23, 1979.
GRATERFORD STATE CORRECTIONAL INSTITUTION, PETITIONER
JAMES RIDDICK, RESPONDENT
Appeal from the Order of the State Civil Service Commission in case of James Riddick v. Graterford State Correctional Institution, Bureau of Correction, Appeal No. 2159.
Francis R. Filipi, Assistant Attorney General, with him J. Andrew Smyser, Deputy Attorney General, and Robert P. Kane, Attorney General, for petitioner.
Richard P. Perna, for respondent.
Judge Wilkinson, Jr., Mencer and Craig, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.
[ 41 Pa. Commw. Page 381]
On November 9, 1977, the State Civil Service Commission (Commission) issued an adjudication which sustained the appeal of respondent from his termination by abandonment of his position as a Corrections Officer I, regular status, with petitioner, the State Institution at Graterford (Graterford) and awarded back pay. The Commission's order provided:
And Now, November 9, 1977, the State Civil Service Commission, by unanimous agreement of its three members, sustains the appeal of James Riddick from his termination by abandonment of his position as Corrections Officer I, regular status, and we hereby order and direct the State Correctional Institution at Graterford to give appellant, James Riddick, ten days notice that his leave of absence without pay is terminated, and he shall report for
[ 41 Pa. Commw. Page 382]
work as Corrections Officer I, regular status, at the State Correctional Institution at Graterford on the date specified, and upon failure to personally report for work as provided herein, he shall be deemed to have resigned as of the first day after such termination of leave, and the Commission further orders that the appellant shall receive reimbursement for salary lost subsequent to January 27, 1977.
We affirm that part of the order which directs reinstatement of respondent to Leave of Absence without Pay status but reverse and set aside that part of the order requiring reimbursement for salary lost subsequent to January 27, 1977.
We need not discuss the facts other than as found by the Commission. It found that respondent was improperly removed from Leave of Absence without Pay status since petitioner did not afford him the required 10 days' notice made necessary by the rules of the Civil Service Commission. 4 Pa. Code 101.53. Even though respondent has steadfastly maintained that he was physically unable to return to work and refused to do so,*fn1 and the Commission has found that he in fact was able to return, the Commission was quite correct in ruling that the petitioner was required to follow the proper procedure to remove him from his status of Leave of Absence without Pay.
However, the Commission has abused its discretion in ordering back pay for an employee who was on Leave of Absence without Pay and who never presented himself for duty. Indeed this employee on several occasions refused to report for duty when ordered to do so, albeit without the appropriate 10 days' notice.
Respondent relies on our opinion in Eash v. State Civil Service Commission, 17 Pa. Commonwealth Ct. 199,
[ 41 Pa. Commw. Page 383331]
A.2d 601 (1975). Indeed that decision requires our setting aside this award of back pay where there has been no showing that the employee on Leave of Absence without Pay status acted on his own behalf to offer to return to work. In Eash, supra, we awarded back pay only from the time the employee on Leave of Absence without Pay offered to return to work and a position was available. Here the position was available but the respondent refused to fill it.
Accordingly, we will enter the following
And Now, March 23, 1979, the order of the State Civil Service Commission, at Appeal 2159, dated November 9, 1977 is modified to remove therefrom any requirement of reimbursement for salary lost subsequent to January 27, 1977, and as so modified is affirmed.
Affirmed as modified.