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MICHAEL PAVIA v. COMMONWEALTH PENNSYLVANIA (10/12/83)

decided: October 12, 1983.

MICHAEL PAVIA, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT. FRANCIS BOLOGNA, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT. AUGUST W. ARNOLD, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT



Appeals from the Orders of the State Civil Service Commission in the cases of Michael Pavia, Appeal No. 2520; Francis Bologna, Appeal No. 2541; and August W. Arnold, Appeal No. 2540.

COUNSEL

T. Lawrence Palmer, with him Jay D. Glasser, Hollinshead and Mendelson, for petitioners.

Michael McCarey, with him Mark Hodgeman, Louis G. Cocheres and Ward T. Williams, Chief Counsel, for respondent.

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

Author: Williams

[ 77 Pa. Commw. Page 481]

This is the consolidated appeal of three, classified service Department of Transportation (DOT) employes (Petitioners)*fn1 from Civil Service Commission (Commission) orders sustaining their "furloughs" under the Civil Service Act (Act).*fn2

[ 77 Pa. Commw. Page 482]

By letters dated June 15, 1978, Petitioners were individually notified that each would be furloughed effective June 30, 1978. Subsequent to their appeals of the furloughs notices to the Commission, but prior to Commission action, each Petitioner voluntarily accepted a demotion in lieu of a furlough. With the cancellations of the furloughs on July 29, 1978, the Commission denied Petitioners' hearing requests. On appeal to this Court, we vacated the Commission's orders denying Petitioners' hearing requests regarding their initial furlough notices and remanded the cases to the Commission for a hearing on the validity of the canceled furloughs.*fn3 Although Petitioners voluntarily accepted demotions in lieu of furloughs, in accordance with Pavia and the Commission's orders (which sustained Petitioners' "furloughs") we shall, within our scope of review,*fn4 determine the validity of Petitioners' "furloughs."

A furlough is defined by Section 3(s) of the Act, 71 P.S. § 741.3(s), as "a termination of employment because of lack of funds or work." The Commission's regulations and case authority burden DOT, as the Appointing Authority, with establishing a prima facie case justifying Petitioners' "furloughs." 4 Pa. Code § 105.15; Department of State v. Stecher, 74 Pa. Commonwealth Ct. 45, 47, 459 A.2d 851, 854 (1983).

By memorandum dated July 1, 1977, the Secretary of Transportation (Secretary) notified District Engineers

[ 77 Pa. Commw. Page 483]

    and Bureau Directors of the cancellation of DOT's federally, and state bond, financed twelve year highway construction and maintenance program (12-year program). The 12-year program was discontinued as a result of the Secretary's decision to cease state bond financing of the program. As a consequence of personnel studies and modifications in personnel requirements to reflect the 12-year program's discontinuance, Petitioners were among those furloughed.

Petitioners first contend that, contrary to the Commission's findings and absent legislatively mandated funding reductions, their "furloughs" resulted not from a lack of funds, but from the 12-year program's cancellation due to the Secretary's arbitrary decision to halt necessary bond financing. The Secretary's memorandum of July 1, 1977 and the uncontroverted testimony of DOT's Deputy Secretary for Highway Administration and Executive Assistant to the Secretary establish, however, that the 12-year program's bond financing was terminated upon the Legislature's failure to appropriate monies sufficient to fund properly DOT's other programs. As a consequence of the Legislature's failure and in recognition ...


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