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EDNA MARSH v. COMMONWEALTH PENNSYLVANIA (08/04/80)

decided: August 4, 1980.

EDNA MARSH, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE AND MAYVIEW STATE HOSPITAL, RESPONDENTS



Appeal from the Order of the State Civil Service Commission in case of Edna Marsh v. Department of Public Welfare, Mayview State Hospital, Appeal No. 2686.

COUNSEL

John J. Bell, with him Peter M. Suwak, for petitioner.

Jack E. Solomon, Assistant Attorney General, for respondents.

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

Author: Blatt

[ 53 Pa. Commw. Page 355]

Edna Marsh (petitioner) appeals from a determination of the State Civil Service Commission (Commission) which sustained her removal by the Department of Public Welfare, Mayview State Hospital (employer) from her position as a Psychiatric Aide I.

On February 28, 1978, the petitioner took a leave from work to recover from injuries she had sustained in an automobile accident. After using all of her annual allotment of leave, she was placed on a leave of

[ 53 Pa. Commw. Page 356]

    absence without pay until November 18, 1978. When this extended leave of absence expired, she notified the employer that she would then be available only for light work. The employer responded that no such light work was available, and notified her that as of December 1, 1978, her employment would be terminated pursuant to Section 101.55(b) of the Rules of the Civil Service Commission, 4 Pa. Code § 101.55(b), which provides that "[A] failure to report for work upon the termination of a leave of absence without pay shall be deemed a resignation. . . ."

The petitioner attacks the order of the Commission on three grounds: 1) she contends that the employer was required under Section 808 of the Civil Service Act (Act)*fn1 to offer her a position involving lighter work or at least to place her in a group of preferred applicants for such work; 2) that her removal was not for "just cause" as required by Section 807 of the Act;*fn2 and 3) that her removal was for non-merit factors and was therefore discriminatory under Section 905.1 of the Act.*fn3

Section 808 of the Act, 71 P.S. § 741.808, designates the rights of an employee returning from a leave of absence as follows:

An employe who has been granted a leave of absence . . . shall, upon the expiration of the leave of absence, have the right to return to the class and civil service status from which leave was granted . . . or to any class and civil service status in the same or lower grade . . . provided that in all [two] ...


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