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KENNETH A. SHARP v. COMMONWEALTH PENNSYLVANIA (07/20/82)

decided: July 20, 1982.

KENNETH A. SHARP, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT



Appeal from the Order of the State Civil Service Commission in the case of Kenneth A. Sharp v. Department of Transportation, Appeal No. 2867.

COUNSEL

Robert L. Webster, Webster & Webster, for petitioner.

Mark Hodgeman, Assistant Counsel, with him Louis G. Cocheres, Assistant Counsel, Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for respondent.

President Judge Crumlish, Jr. and Judges Blatt and Craig, sitting as a panel of three. Opinion by President Judge Crumlish, Jr. Judges Mencer and Palladino did not participate in the decision in this case.

Author: Crumlish

[ 67 Pa. Commw. Page 523]

Kenneth Sharp appeals from a ruling of the Civil Service Commission which held that he had been properly furloughed under the Civil Service Act.*fn1 We affirm.

The unique facts in this case present, at first glance, a procedural and evidentiary conundrum, complicated by the apparent chicanery of the appointing authority. However, the simple fact is that a lack of available funds controls the outcome of this case.

[ 67 Pa. Commw. Page 524]

In March 1976 Sharp was furloughed by DOT from his position as RES I (Real Estate Specialist I). He appealed to the Civil Service Commission, which determined that Sharp had been improperly furloughed and ordered his reinstatement with back pay effective March 23, 1978. DOT appealed this ruling and we affirmed the Commission in Department Page 524} of Transportation v. Sharp, 42 Pa. Commonwealth Ct. 47, 399 A.2d 1195 (1979). On June 21, 1979, Sharp was reinstated as a Real Estate Specialist I.

In the interim, the Secretary of Transportation, by memorandum dated July 1, 1977, notified the District Engineers and Bureau Directors that drastic reductions in the work force would be necessary because state bond financing would not be forthcoming. The Secretary requested recommendations for reductions in staff as a result of his decision to cancel DOT's 12-year program.*fn2 On the basis of personnel studies and the requested recommendations, the position of RES I was eliminated in Sharp's district. After Sharp's court-ordered reinstatement, he was again furloughed as of July 25, 1979. It is from this second furlough that he has appealed.

Our scope of review from a ruling of the Civil Service Commission is delineated by Section 704 of the Administrative Agency Law, 2 Pa. C.S. ยง 704, which limits our review to determining if there was an error of law committed, if constitutional rights were violated or the findings of fact were not supported by substantial evidence.

Sharp first contends that the first Commission ruling, as affirmed by this Court, operated as res judicata to ...


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