decided: December 14, 1983.
RICHARD E. WILLIAMS, PETITIONER
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT
Appeal from the Order of the Pennsylvania State Civil Service Commission in case of Richard F. Williams v. Department of Transportation, Appeal No. 2787.
David A. Johnston, Jr., for petitioner.
Michael J. McCaney, Jr., Assistant Counsel, with him Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for respondent.
Judges Williams, Jr., Doyle and Barbieri, sitting as a panel of three. Opinion by Judge Doyle.
[ 79 Pa. Commw. Page 114]
Petitioner appeals from the order of the State Civil Service Commission which affirmed the action of the Department of Transportation in furloughing the Petitioner from his position as Transportation Construction Manager I.
As required under Section 802 of the Civil Service Act,*fn1 Petitioner's furlough was determined by a ranking system under which the Department compared employees' scores derived from recent performance
[ 79 Pa. Commw. Page 115]
evaluation reports (PERs).*fn2 In compiling the scores which were the basis for Petitioner's furlough ranking, the department used PERs which were not based upon the same number of performance factors.*fn3
In Petitioner's initial appeal to our Court, Williams v. Department of Transportation, 64 Pa. Commonwealth Ct. 153, 439 A.2d 233 (1982) (Williams I), we remanded this case for further evidence, citing with approval the Commission's case of Weikal v. Department of Transportation,*fn4 in which the Commission found the Department's practice of comparing PERs based upon different performance factors to be discriminatory, requiring reinstatement of the employee.
On remand to the Commission, it was established that the furlough determination in this case was made by comparing PERs based upon different factors. The Commission distinguished this case from their decision in Weikal, however on the basis of additional evidence indicating that the Petitioner would still have been furloughed had only common PER factors been considered.*fn5 On the basis of this evidence, the Commission
[ 79 Pa. Commw. Page 116]
found that the Petitioner suffered no prejudice by the Department's error, and refused reinstatement.
The Commission's decision on remand is not consistent with this Court's prior opinion, in which we concluded that the Department's procedure was itself invalid as contrary to statute. In Williams I we stated:
Section 802, requiring furlough rankings to be based upon grouping "regular" ratings, cannot be read as tolerating the inclusion of irregular rating(s) in the determination.
Id. at 156, 439 A.2d at 235. From this language it is clear that any determination involving an impermissible comparison of dissimilar PERs shall be considered invalid. There is no additional requirement that such a determination be shown to be prejudicial to the party involved, nor is such a requirement mentioned in Weikal.*fn6 Our Court remanded this case solely for the factual determination of whether the impermissible furlough rating procedure used in Weikal was present here. Once that fact was established, the Commission should have found that Petitioner's furlough was itself invalid, regardless of the prejudice or lack of prejudice which resulted from the procedure.
Accordingly, we must reverse the decision of the Commission.
Now, December 14, 1983, the decision and order of the State Civil Service Commission in the above referenced matter, dated October 29, 1982, is hereby reversed. The Petitioner is hereby ordered reinstated
[ 79 Pa. Commw. Page 117]
and this matter is remanded to the State Civil Service Commission for the appropriate proceedings to determine backpay and benefits owed Petitioner for the period of his furlough. Jurisdiction is relinquished.
Reversed. Employee ordered reinstated. Case remanded.