Appeal from the Order of the State Civil Service Commission in the case of Manfred R. Hauptmann v. Department of Transportation, No. 2866.
Dona S. Kahn, Harris and Kahn, for petitioner.
Michael J. McCaney, Jr., Assistant Counsel, with him Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for respondent.
Judges Rogers, MacPhail and Barry, sitting as a panel of three. Opinion by Judge MacPhail.
[ 77 Pa. Commw. Page 608]
Manfred R. Hauptmann (Petitioner) appeals from the July 12, 1982 Supplemental Adjudication and Order of the Civil Service Commission (Commission) which dismissed Petitioner's appeal from his demotion in lieu of furlough by the Department of Transportation (DOT), effective July 3, 1978. The order now on appeal affirms the Commission's previous determination that Petitioner failed to appeal his Performance Evaluation Report (PER) within twenty days. As a consequence, Petitioner's appeal from his demotion, which was based upon that PER, was dismissed.
In its consideration of Petitioner's appeal, the Commission initially refused to hear evidence regarding Petitioner's PER of September 27, 1977, which evaluated Petitioner's performance from the period November of 1976 to November of 1977, because of Petitioner's failure to timely appeal the PER. An appeal to this Court from that order resulted in a remand to the Commission for the purpose of hearing evidence on the matter of whether Petitioner had timely appealed the PER or whether DOT was estopped from denying the timeliness of Petitioner's appeal regardless of the twenty day limit.*fn1 On remand, the Commission found that the Petitioner failed to timely appeal the September 1977 PER and that DOT was not estopped from invoking the twenty day appeal period. The Commission additionally found that even had Petitioner appealed the PER in a timely manner,
[ 77 Pa. Commw. Page 609]
the reviewing officer, would not have approved a rating higher than that actually received by the Petitioner.
The relevant facts are set forth in Hauptmann I. Petitioner had been employed by DOT since 1962. In 1977, he worked as a Transportation Construction Manager I. The record at the remand hearing shows that at the time of Petitioner's PER now at issue, DOT was in the process of revising the standards for performance ratings for persons working in Petitioner's position.*fn2 The difficulty which is pertinent to this appeal concerns the maximum rating score which Petitioner's evaluator, Frederick Ateto, was permitted to assign to Petitioner. Mr. Ateto testified that no one seemed to be certain of the maximum allowable rating for Petitioner and in order to meet time deadlines imposed upon him for the submission of PER's, Mr. Ateto rated Petitioner with a score of 18.0 and told Petitioner that the score would be adjusted upward if the maximum allowable was higher than that figure. The PER with the 18.0 score was also signed by the reviewing officer, a Mr. Charles Connor, and the form was then processed.
Approximately one week later, Petitioner learned from Mr. Ateto that the maximum allowable rating for his position was 18.4.*fn3 At the time that information was communicated by Mr. Ateto, he testified that he told Petitioner "in my capacity, that's the end of the show. I can't do anything right now". Both the Petitioner and Mr. Ateto testified that they were unaware of the twenty day limit for appeals of a PER.*fn4
[ 77 Pa. Commw. Page 610]
Petitioner next became concerned about the September 1977 PER in February 1978, when he was notified that he would be demoted to a Transportation Construction Inspector II because of a reduction in force within DOT. Petitioner thereupon consulted various supervisors and a DOT personnel officer and was told, in February 1978, that he could not appeal from his PER until he was injured by being demoted or furloughed. The demotion which was scheduled to be effective March 2, 1978, however, was rescinded. In June of 1978, Petitioner was again notified that he would be ...