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MICHAEL PAVIA v. COMMONWEALTH PENNSYLVANIA (11/27/79)

decided: November 27, 1979.

MICHAEL PAVIA, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT. AUGUST W. ARNOLD, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT. FRANCIS BOLOGNA, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT



Appeals from the Orders of the State Civil Service Commission in cases of Michael Pavia v. Department of Transportation, Appeal No. 2520; August W. Arnold v. Department of Transportation, Appeal No. 2540; and Francis Bologna v. Department of Transportation, Appeal No. 2541.

COUNSEL

T. Lawrence Palmer, with him Hollinshead and Mendelson ; and McArdle, Caroselli, Spagnolli & Beachler, for petitioners.

Frank A. Fisher, Jr., Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Edward G. Biester, Jr., Acting Attorney General, for respondent.

Judges Mencer, Blatt and MacPhail, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 47 Pa. Commw. Page 400]

Michael Pavia, August W. Arnold, and Francis Bologna (petitioners) seek review of the orders of the State Civil Service Commission (Commission) dismissing their appeals of their furloughs from the Department of Transportation (PennDOT). The relevant facts are the same in each case, and the petitions have been consolidated for the purposes of argument and disposition.

The petitioners were individually notified on June 15, 1978 that each would be furloughed as of June 30, 1978. On June 27, 1978, they appealed their furlough notices to the Commission and requested a hearing. Before the Commission could act, however, each petitioner accepted a voluntary demotion in lieu of a furlough, and each was notified by letter of July 29, 1978 that his furlough was cancelled effective that day. The Commission denied the hearing requests on noting that the petitioners had voluntarily accepted demotions in lieu of furloughs, but the petitioners have appealed to us arguing that they did not waive their right to appeal their furloughs by accepting demotions and that, therefore, the Commission must grant the hearings requested.

[ 47 Pa. Commw. Page 401]

Under Section 951 of the Civil Service Act,*fn1 a classified employee may appeal to the Commission "[a]ny permanent separation, suspension for cause, furlough or demotion on the grounds that such action has been taken in violation of the provisions of this act, [and] upon receipt of such notice of appeal, the Commission shall promptly schedule and hold a public hearing." Clearly, therefore, the petitioners were entitled to a hearing when they received their furlough notices. Inasmuch as their furlough notices were cancelled, however, the petitioners never were furloughed. Consequently, they are now in the paradoxical position of attempting to challenge a furlough which never took place.

We would agree that, at least at first glance, it might seem incongruous to expect the Commission to conduct a hearing regarding a cancelled furlough. We believe, however, that the realities of the situation as well as the policy considerations involved, require that we remand these cases to the Commission for consideration of the petitioners' claims.

Actually, whether or not the decision to furlough the petitioners was valid is not a moot issue here, for the petitioners continue to suffer from it. They are now in positions with less pay and responsibility, which they accepted reluctantly and only because they were threatened with furlough. They desire to be reinstated to their former positions and insist that they did not intend, by accepting demotions, to waive their right to a hearing on the furlough action. Indeed, they insist that they accepted demotions only after assurances by PennDOT officials that they could continue to prosecute their furlough challenges. To affirm the Commission under these circumstances, we believe,

[ 47 Pa. Commw. Page 402]

    would be to allow PennDOT to escape review of its furlough decisions merely because it agreed to demote employees whom it may have ...


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