Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

WALLACE G. JOHNSON v. COMMONWEALTH PENNSYLVANIA (10/12/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: October 12, 1983.

WALLACE G. JOHNSON, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT. ROSAURO C. PALILEO, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT. WILLIAM M. BUCK, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT. LISLE E. WILLIAMS, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT. ROBERT J. SOMMER, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT. FRANK G. CICCARELLI, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT. JOHN B. SULLIVAN, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT. NORMA MATISZ, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT. SAMUEL LIVINGSTON, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT. ROBERT S. NIEDZIELKA, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT. RICHARD D. PONZETTO, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT. EDWIN A. KIST, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT. VICTOR RECK, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT. RONALD WALKER, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT. ROBERT IVILL, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT. CHARLES MILLER, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT. MARTIN L. NEAMAN, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT

Appeals from the Orders of the State Civil Service Commission in the cases of Wallace G. Johnson, Appeal No. 2641; Rosauro C. Palileo, Appeal No. 2645; William M. Buck, Appeal No. 2639; Lisle E. Williams, Appeal No. 2638; Robert J. Sommer, Appeal No. 2648; Frank D. Cicarelli, Appeal No. 2661; John V. Sullivan, Appeal No. 2649; Norma Matisz, Appeal No. 2642; Samuel Livingston, Appeal No. 2637; Robert S. Niedzielka, Appeal No. 2644; Richard D. Ponzetto, Appeal No. 2646; Edwin A. Kist, Appeal No. 2657; Victor Reck, Appeal No. 2647; Ronald Walker, Appeal No. 2650; Robert Ivill, Appeal No. 2640; Charles Miller, Appeal No. 2643, and Martin L. Neaman, Appeal No. 2658.

COUNSEL

T. Lawrence Palmer, McArdle, Caroselli, Spagnolli & Beachler, with him Jay D. Glasser, Hollinshead and Mendelson, for petitioners.

Michael McCarey, with him Mark Hodgeman, Assistant Counsel, Ward T. Williams, Chief Counsel, and Jay C. Waldman, General 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 488]

This is the consolidated appeal of seventeen furloughed or demoted regular status Pennsylvania Department of Transportation (DOT) employes (Petitioners)

[ 77 Pa. Commw. Page 489]

    from Civil Service Commission (Commission) orders sustaining their furloughs, or demotions in lieu of furloughs, as proper under the Civil Service Act (Act).*fn1

By memorandum dated July 1, 1977, the Secretary of Transportation (Secretary) notified District Engineers 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 a decision of the Secretary to terminate future state bond financing because of DOT's inability to afford the increasing debt service. Following personnel studies and modifications in personnel requirements to reflect the 12-year program's cancellation, petitioners were among those either furloughed or demoted in lieu of furlough, effective June 30, 1978. This consolidated appeal from the Commission's orders upholding the adverse personnel actions followed.

Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704, requires this Court to affirm Commission adjudications unless constitutional rights are violated, errors of law are committed or necessary findings of fact are not supported by substantial evidence. Forbes v. PennDOT, 61 Pa. Commonwealth Ct. 641, 643, 434 A.2d 892, 894 (1981).

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." Further, DOT, as the Appointing Authority, has the burden of proving

[ 77 Pa. Commw. Page 490]

    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). DOT has successfully met this burden.

Petitioners first contend that the Secretary's decision to cease selling state bonds, which financed (in conjunction with federal monies) the 12-year program, and the program's consequent discontinuance, absent legislatively mandated funding reductions, was an arbitrary act not necessitated by a lack of funds. The Commission's findings, however, ignoring the grounds for terminating the program's state bond financing, established only that a lack of funds resulted from the Secretary's decision to cease selling state bonds.

The uncontroverted testimony of DOT's Deputy Secretary for Highway Administration provided ample grounds underpinning the Secretary's decision to halt the program's state bond financing. The witness repeatedly indicated that DOT could not afford to pay the ever increasing debt service; and, without continued state bond financing, the 12-year program was discontinued for lack of funds. Thus, the Secretary's decision to halt bond sales for reasons of economy was both rational and legitimate, and neither this Court nor the Commission may substitute its judgment for that of department officials in matters relevant to departmental economy and efficiency. See, Vovakes v. Department of Transportation, 71 Pa. Commonwealth Ct. 3, 453 A.2d 1072 (1982); Department of Public Welfare v. Magrath, 14 Pa. Commonwealth Ct. 257, 321 A.2d 403 (1974).

Therefore, concluding that substantial record evidence supports the Commission's findings that financial considerations motivated Petitioners' furloughs,*fn2

[ 77 Pa. Commw. Page 491]

    and that the Secretary's decision to terminate state bond sales because of DOT's inabiliy to afford ever increasing debt service payments was a rational and legitimate attempt to promote governmental economy, we reject Petitioners' first argument.

Petitioners next assert that their furloughs improperly resulted from "a department-wide pattern of manipulation, discrimination, and irregularities in the [performance evaluation rating] PER system." A PER is each employe's relative numerical rank derived from his regular service rating. 4 Pa. Code §§ 99.11-99.15; Collins v. PennDOT, 37 Pa. Commonwealth Ct. 292, 296, 390 A.2d 333, 335 (1978); and, an employe is subject to furlough, "if at the time he is furloughed, he is [the least senior employe] within the lowest quarter among all employes of the employer in the same class on the basis of their last regular service ratings." Section 802 of the Act, 71 P.S. § 741.802. Petitioners generally allege that the PERs of certain nondenominated, nonfurloughed DOT employes within their class were inflated by rating supervisors for non-merit reasons.*fn3

[ 77 Pa. Commw. Page 492]

It is axiomatic that judging issues of credibility and resolving evidentiary conflicts are functions of the Commission and not this Court. Silvia v. Pennhurst Page 492} Center, 63 Pa. Commonwealth Ct. 75, 78, 437 A.2d 535, 536 (1981). The Commission, simply, did not find Petitioners' broad allegations of department-wide irregularities in PERs to be credible. The Commission did find credible the testimony of DOT's personnel analyst that the challenged service ratings were properly determined in accordance with statute and regulations. Although Petitioners presented conflicting testimony, credibility determinations and evidentiary conflict resolution are for the Commission, id., and this Court may not override the Commission's findings where those findings are supported by evidence sufficient to convince a reasonable mind to a fair degree of certainty. Vovakes, 71 Pa. Commonwealth Ct. at 7, 453 A.2d at 1074.

Finally, those Petitioners reclassified from "rank and file" to management on October 17, 1977, and who simultaneously transferred from a nonsupervisory to a supervisory bargaining unit, and whose seniority for furlough purposes (in accordance with the then controlling collective bargaining agreement) was determined exclusively by their length of service in the management classification, assert that their furloughs were improper because the reclassification, notices failed to apprise them of their surrender of "rank and file" seniority.*fn4

Section 741.950 of the Act, 71 P.S. § 741.950, requires that an employe in the classified service be provided

[ 77 Pa. Commw. Page 493]

    with written notice of any personnel action taken with respect to that employe. Assuming, without deciding, that reclassification is a personnel action for which written notice is required,*fn5 neither Section 741.950 of the Act nor the Commission's regulations at 4 Pa. Code § 105.3 require that Petitioners be apprised of the myriad consequences of this personnel action.*fn6

Accordingly, we affirm the orders of the Commission.

Order

And Now, this 12th day of October, 1983, the orders of the State Civil Service Commission in the above-captioned matter are affirmed.

Disposition

Affirmed.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.