Appeal from the Order of the State Civil Service Commission in the case of Manfred R. Hauptmann v. Department of Transportation, Appeal No. 2866.
Dona S. Kahn, of counsel, Harris and Kahn, for petitioner.
Louis G. Cocheres, Assistant Attorney General, with him Ward T. Williams, Chief Counsel, for respondent.
Judges Mencer, Rogers and Palladino, sitting as a panel of three. Opinion by Judge Mencer. Judge Wilkinson, Jr. did not participate in the decision in this case.
[ 59 Pa. Commw. Page 278]
Manfred R. Hauptmann (petitioner) has appealed from a decision of the State Civil Service Commission (Commission) which upheld an action of the Department of Transportation (DOT) resulting in the furlough of the petitioner.*fn1 We vacate and remand.
The petitioner was employed by DOT as a Transportation Construction Manager I in District 6. In September 1977, the petitioner received a performance evaluation rating of 18.0. In June 1978, DOT furloughed every District 6 Construction Manager with a rating less than 18.4. Because of his collective bargaining right to "bump" less senior employees in other job classifications, the petitioner was transferred to the position of Transportation Construction Inspector II. In November 1978, DOT eliminated several
[ 59 Pa. Commw. Page 279]
positions within this classification and the petitioner was furloughed a second time due to lack of seniority.
The Commission upheld both furloughs because the petitioner had failed to appeal his rating of 18.0 within 20 days after he knew about it. On the facts recited above, we would be required to affirm the Commission on the basis of Ellis v. Department of Transportation, 33 Pa. Commonwealth Ct. 354, 381 A.2d 1325 (1978). There are additional problems in the present case, however, which were absent from Ellis and which require us to remand to the Commission for further proceedings.
The record in this case is totally devoid of evidence on the question of whether the performance rating was appealed in timely fashion. The Commission produced no evidence on the point, and it refused to permit the petitioner to introduce evidence which could have established that a timely appeal had been filed. The Commission reasoned that the petitioner was attempting a collateral attack on the finality of the performance rating. This refusal to take evidence was improper in this case because of the unusual facts involved.
The petitioner's offer of proof before the Commission alleged the following facts. When the performance rating was made on September 26, 1977, both the petitioner and the evaluator understood that contemporary DOT guidelines prohibited a rating in excess of 18.0.*fn2 After the ...