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decided: December 20, 1982.


Appeals in cases of Irving Silverman v. Commonwealth of Pennsylvania, Department of Education, Appeal No. 3077.


Edgar R. Casper, Krank, Gross & Casper, for petitioner, Irving Silverman.

Phillip A. Ayers, Counsel, with him Michael A. Davis, Chief Counsel, for Pennsylvania Department of Education.

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

Author: Williams

[ 70 Pa. Commw. Page 445]

Before us here are two separate appeals from a single adjudication of the State Civil Service Commission (Commission). The adjudication in question concerned adverse personnel action taken by the Department of Education (Department) with regard to Irving Silverman, a former bureau director in the Department. Although the Commission granted Silverman certain relief, it was not the relief he sought. The first of the instant appeals, No. 872 C.D. 1981, is a challenge by Silverman to the sufficiency of the relief the Commission granted him. The second appeal, No. 1073 C.D. 1981, is a cross-appeal by the Department, and focuses on but one element of the Commission's adjudication: a conclusion that the Department had discriminated against Silverman. We consolidated the two appeals for argument and disposition.

Prior to the events here in issue, Irving Silverman had been employed by the Department for over 20 years. In September 1978, he attained the position of "Director, Office of Administrative Management, Higher Education." As Director, Silverman was in pay range 51. During the spring of 1979 the Secretary

[ 70 Pa. Commw. Page 446]

    of Education, Dr. Robert G. Scanlon, began efforts to reorganize the administrative structure of the Department. As a prelude to the proposed reorganization, the Secretary had requested the State Civil Service Commission to put various existing director positions in "unclassified service," pursuant to Section 3(c)(1) of the Civil Service Act.*fn1 One of the positions targeted was Silverman's. By a decision dated June 8, 1979, the Commission gave partial approval of the Secretary's request. Silverman's position was among those approved for the "unclassified service" category. However, the Commission's decision in that respect expressly provided that all incumbents in the affected positions would retain civil service status.*fn2

The proposed reorganization would result in the abolishment of Silverman's bureau and, consequently, his position as Director. The duties of his bureau, or office, consisted of budgetary, construction, and managerial support functions. However, there were at least two other bureaus within the Department that had the same group of functions. Under the reorganization plan, the multi-bureau performance of the same functions was to be eliminated or reduced; the duplicated functions were to be consolidated and transferred to a new or different bureau. The budgetary and managerial support functions of Silverman's bureau, along with the same functions of two other existing bureaus, were to be transferred to a newly created unit, the Bureau of Budget and Management. The new

[ 70 Pa. Commw. Page 447]

    bureau would be headed by a newly titled "Director, Bureau of Budget and Management," for whom Secretary Scanlon had initially proposed compensation at pay range 53.

The reorganization in the Department took effect on November 8, 1979. However, during the spring of 1979, Silverman had been advised of the impending abolishment of his position. He also had learned, during the spring or early summer of 1979, that his name was omitted from the officially circulated list of people proposed for bureau directorships under the reorganization plan.*fn3 By July 1, 1979, Silverman had been relieved of his staff and all practical duties; and, as of that date, he was the director of his bureau only in title and salary.

At some point about July 1, 1979, before the effective date of the reorganization, Irving Silverman was given a new job assignment within the Department. He was given the role of "special assistant" to Dr. Victor Petaccio, the Deputy Secretary for Administration and Management. However, according to Silverman, his tasks in his new capacity turned out to be low-level or routine; and were not commensurate with his former position or his education and experience. Nevertheless, for several months after both his transfer and the reorganization, Silverman was to continue receiving the same pay range 51 that he did in ...

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