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DAVID FORTHUBER AND KAREN DUNCAN v. CITY PITTSBURGH (07/26/82)

decided: July 26, 1982.

DAVID FORTHUBER AND KAREN DUNCAN
v.
CITY OF PITTSBURGH, DEPARTMENT OF PERSONNEL AND CIVIL SERVICE COMMISSION, CITY OF PITTSBURGH, APPELLANT



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of David Forthuber and Karen Duncan v. City of Pittsburgh, Department of Personnel and Civil Service Commission, No. S.A. 274 of 1981.

COUNSEL

Bernard M. Schneider, Assistant City Solicitor, with him Virginia I. Cook, Assistant City Solicitor, D. R. Pellegrini, Deputy City Solicitor, and Mead J. Mulvihill, Jr., City Solicitor, for appellant.

Emilio P. Fastuca, for appellees.

Judges Rogers, Blatt and Craig, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 67 Pa. Commw. Page 628]

The Director of the City of Pittsburgh's Department of Personnel and Civil Service Commission (Department) dismissed Karen Duncan and David Forthuber (appellees) from their positions of employment with the Department. After hearings, the Department of Personnel and Civil Service Commission Appeals Board modified the director's orders to provide for suspensions only -- Duncan for sixty days and Forthuber for thirty. The city appealed and the Court of Common Pleas of Allegheny County affirmed the Appeals Board's order. The city has filed this further appeal.

Duncan was a Personnel Technician in the Examination Section of the Department and Forthuber was an Administrator I, a rating lower than Duncan's. In the course of her duties Duncan was assigned the work of making evaluations of written applications filed for the position of Senior Planner in the Department. Her duties in this connection were to examine the applications and to place each in one of the categories: meeting, appearing to meet or questionably meeting, the minimum qualifications for Senior Planner. Forthuber had filed an application for Senior Planner. At the conclusion of her work, Duncan placed Forthuber in the category of persons meeting the minimum requirements for the position.

[ 67 Pa. Commw. Page 629]

At or about the time Duncan's work was finished and the product referred to her supervisor, another employee reported to the Director that he had observed Duncan at her desk with the applications for the Senior Planner before her and with Forthuber sitting beside her desk. There he overheard a conversation of Duncan and Forthuber concerning the relative merits of some of the applications. The fellow employee was drawn into the conversation by Duncan and Forthuber, during the course of which Duncan at one point, in apparently joking fashion, asked the fellow employee to look at an application and when he did saw that it was Forthuber's. The witness testified that the conversation concerning the applications lasted one, perhaps as long as two hours. The Director of the Department thereupon gave each Duncan and Forthuber a written notice of a five day suspension for their activities with respect to the applications for Senior Planner, which she described, and she charged the appellees with improper professional conduct. By the same notice Duncan and Forthuber were directed to respond in writing to the charge with reasons why their employment should not be terminated. They were warned that if they failed to reply or if their responses were unsatisfactory they would be dismissed. Duncan responded in writing to the effect that she had at no time consulted with Forthuber regarding her evaluation and that she did not authorize or permit Forthuber to assist her. Forthuber replied that he was a very ethical person and that the charges against him were groundless. The Director then dismissed the appellees for responding unsatisfactorily to her notice.

At the hearing conducted by the Appeals Board Duncan evaded responding to questions concerning the incident described by the fellow employee but seems to admit that Forthuber told her that he would

[ 67 Pa. Commw. Page 630]

    like to be the person given the position. Forthuber admitted that he was at Duncan's desk as described by the fellow employee and that he looked at the applications but that the interchange was of a jocular nature and that he did not participate with Duncan in evaluating the application.

There is also evidence in the record that applications for positions in the city's service were on other occasions the subject of humorous comment by the ...


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