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DELAWARE COUNTY BOARD ASSISTANCE v. VICTOR BALANOW (12/23/81)

decided: December 23, 1981.

DELAWARE COUNTY BOARD OF ASSISTANCE, DEPARTMENT OF PUBLIC WELFARE, PETITIONER
v.
VICTOR BALANOW, RESPONDENT



Appeal from the Order of the State Civil Service Commission in case of Victor Balanow v. Delaware County Board of Assistance, Department of Public Welfare, Appeal No. 3092.

COUNSEL

Marc G. Brecher, Deputy Attorney General, with him John O. J. Shellenberger, Deputy Attorney General, and LeRoy S. Zimmerman, Attorney General, for petitioner.

No appearance for respondent.

Judges Mencer, Williams, Jr. and Palladino, sitting as a panel of three. Opinion by Judge Palladino. Judge Williams, Jr. dissents.

Author: Palladino

[ 63 Pa. Commw. Page 389]

The Delaware County Board of Assistance (County) appeals an order of the State Civil Service Commission (Commission) which sustained the appeal of Victor Balanow (Respondent) from his removal as an income maintenance worker. We reverse the order of the Commission.

In order to maintain his job classification after a nine-month absence from his job, Respondent was required to complete a twelve-week standard training program. Subsequently, the County notified Respondent by letter that, pursuant to Section 807 of the Civil Service Act (Act), Act of August 5, 1941, P.L. 752, as amended, 71 P.S. § 741.807,*fn1 Respondent was to

[ 63 Pa. Commw. Page 390]

    be removed from his job for "[f]ailure to meet the Proficiency Standards of the Income Maintenance Worker classification series." The County letter further enumerated specific examples of Respondent's unsatisfactory performance during the standard training program.

In response to the notice of removal, Respondent timely appealed to the Commission by noting on a pre-printed form issued by the Commission, that he elected to appeal his removal under Section 951(b) of the Act, 71 P.S. § 741.951(b),*fn2 which concerns personnel actions precipitated by discrimination or other non-merit factors. Despite Respondent's election to proceed under Section 951(b) of the Act [discrimination or non-merit reasons], at the hearing the Commission placed on the County, over the County's objection, the burden of proving just cause [merit, job performance reasons] for removal of Respondent according to Section 807 of the Act.*fn3

[ 63 Pa. Commw. Page 391]

In its adjudication the Commission stated that Respondent "was improperly removed under Section 807 of the Civil Service Act" and that the County "violated Section 905.1 of the Civil Service Act, . . . by discriminating against [Respondent]." The County promptly appealed the Commission's adjudication, asserting that the Commission improperly assigned the burden of proof to the County.

The initial inquiry before this Court is whether Respondent's election of a basis for appeal controls the conduct and subject of the ...


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