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PENNSYLVANIA DEPARTMENT AGING v. FREDERICK C. LINDBERG (12/14/83)

decided: December 14, 1983.

PENNSYLVANIA DEPARTMENT OF AGING, APPELLANT,
v.
FREDERICK C. LINDBERG, APPELLEE



NO. 1 MIDDLE DISTRICT APPEAL DOCKET, 1983, Appeal from Opinion and Order of the Commonwealth Court entered at No. 1226, C.D. 1980, filed December 20, 1982, 64 Pa. Commonwealth Ct. 545, Roberts, C.j., and Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Nix, J., did not participate in the consideration or decision of this case. Roberts, C.j., files a concurring opinion in which Zappala, J., joins. McDermott, J., files a concurring opinion.

Author: Hutchinson

[ 503 Pa. Page 425]

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

Appellant, the Commonwealth's Department of Aging, filed a notice of appeal from Commonwealth Court's December 20, 1982 order directing it to reinstate appellee to the position from which the Civil Service Commission had held he was improperly furloughed. Commonwealth Court had previously affirmed that decision on the Department's

[ 503 Pa. Page 426]

Petition for Review. While appellee's action was pending the Department offered him a lesser position. The Department furloughed him from the new position after the Commission ordered his reinstatement to the old position, also while the Department's appeal was pending. Thereafter, Commonwealth Court affirmed the Commission's order directing reinstatement. The Department paid appellee an amount representing the difference between his original pay rate and the pay rate for the lesser position, but only up until the date it furloughed him from the lesser position. It declined to further pay or employ him. In the reinstatement order, entered on appellee's "Petition for Enforcement," the subject of this appeal, the Court further directed the Department of Aging to pay appellee all wages lost at the rate for the position from which he was improperly furloughed, including those lost after he was properly furloughed from the lower paying position he had accepted after his challenged furlough. Based on stipulated facts Commonwealth Court in its memorandum opinion correctly held that the Department never complied with the State Civil Service Commission's order when it failed to reinstate appellee to the position from which he was improperly furloughed. Moreover, it correctly held the Department's argument that the Commission's reinstatement order was an abuse of discretion because appellee had accepted a lesser position while his appeal was pending was barred on grounds of res judicata.

Before we resolve this case on the merits, however, we must determine whether the matter is properly before us on direct appeal. Because Commonwealth Court's order was entered on appellee's petition to that court to enforce a Civil Service Commission's order, which the court had previously affirmed on appellant's petition for review, the Department claims a right to appeal to this Court under Judicial Code Section 723(a). It has a right to appeal to us only if the enforcement order is considered an order entered by Commonwealth Court in an action "originally commenced" in that court under Section 723(a) of the Judicial Code.

[ 503 Pa. Page 427]

We hold Commonwealth Court's enforcement order was entered in a proceeding addressed to its appellate jurisdiction; therefore, appellant has no right of appeal to us under 42 Pa.C.S. § 723(a).*fn1 Were we to hold otherwise, a party who disagrees with a Commonwealth Court decision reviewing an agency's final order could obtain the right of appeal, which our statutes deny, by the expedient of stubbornly refusing to obey the decision, and then appealing to us as of right from Commonwealth Court's order of enforcement. Since appellant has no right of appeal we have treated its notice of appeal as a petition for allocatur, granted it and on that grant affirmed Commonwealth Court's enforcement order on the merits.*fn2

Our holding that a Commonwealth agency's appeal to this Court from a Commonwealth Court enforcement order is of grace, not right, is not only practical but follows sound principles of statutory construction. It is also consonant with Article V, Section 9 of our state constitution which insures a right of appeal "from a court of record or from an administrative agency to a court of record or to an appellate court. . . ." (emphasis added).

Article V, Section 9 of our Constitution reflects the deeply felt common law notion that all persons are entitled to at least one judicial review of original adjudications which directly affect them. It does not guarantee more than one such review. An examination of both our current statutes on appellate jurisdiction and agency review, as well as their predecessors, reveals that review at a second appellate level

[ 503 Pa. Page 428]

    of Commonwealth agencies' adjudications has never been required.*fn3

Moreover, our decision herein reinforces the legislative purpose behind the recent enactments transferring certain types of cases formerly within the mandatory appellate jurisdiction of this Court to our intermediate appellate courts, with further review here only by discretionary grant of allocatur. See Act of September 23, 1980, P.L. 686, effective November 22, 1980, 42 Pa.C.S. § 722. That legislation was designed to convert this Court into one exercising its appellate jurisdiction largely by discretion, in order that we might devote our finite resources of time and attention to an in-depth study of legal issues of special statewide importance. In order that those issues should receive such attention it was felt necessary to give this Court control over its own docket. Our holding today prevents a disgruntled litigant from limiting that control. It also removes at least one advantage from stubborn insistence on additional enforcement proceedings in Commonwealth Court on matters that court has already decided on the merits.

To demonstrate that the result we reach today, on the appealability of Commonwealth Court's orders enforcing parties' compliance with its appellate decisions on the merits, is in accord with our constitution and statutes on appellate jurisdiction we proceed to specific examination of the nature of a petition to enforce, as well as relevant jurisdictional ...


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