No. 21 M.D. Appeal Docket 1983, Appeal from Order of Commonwealth Court entered at 2514 C.D. 1982, dated March 14, 1983, granting Appellees' Motion for Summary Judgment and denying Appellant's Motion for Summary Judgment.
Steven L. Friedman, Philadelphia, John L. Heaton, Harrisburg, for appellant.
Marybeth A. Stanton, Deputy Atty. Gen., for appellee.
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Nix, J., did not participate in the consideration or decision of this case. Zappala, J., files an opinion in support of affirmance. Roberts, C.j., and McDermott, J., join. Larsen, J., filed an opinion in support of reversal. Hutchinson, J., filed an opinion in support of reversal in which Flaherty, J., joined.
The Court being equally divided, the Order of the Commonwealth Court is affirmed.
Opinion IN SUPPORT OF AFFIRMANCE
Appellant George Sterling has filed a notice of appeal from the Commonwealth Court's order of March 14, 1983
which was entered in his mandamus action against the Department of Environmental Resources ("DER") and the State Civil Service Commission ("Commission"). That court denied Appellant's motion for summary judgment and granted the Appellees' motion for summary judgment.
The record facts indicate that the Appellant, an employee with DER's Bureau of Mining and Regulation, received a letter dated July 12, 1982 from the Secretary of Environmental Resources informing him of an impending reduction in his compensation as a manager of two pay steps within the same position due to deficiencies in his job performance. DER advised him that the action was taken in accordance with 4 Pa.Code § 99.31, which provides in part that "[a]n appointing authority may reduce the salary of an employee on account of unsatisfactory performance of duties, or for disciplinary reasons to a lower salary rate within the salary range prescribed for his position."
Following his request for a hearing on the disciplinary action under §§ 951(a) and (b) of the Civil Service Act, Act of August 5, 1941, P.L. 752, as amended, 71 P.S. §§ 741.1 et seq., Appellant was denied a hearing under § 951(a), but was granted a hearing under § 951(b).*fn1
Appellant then filed a petition for review, in the nature of mandamus, in Commonwealth Court, seeking an order either enjoining DER's action or directing the Commission to provide him with a hearing pursuant to § 951(a) of the Act in addition to the hearing available under § 951(b).*fn2 Upon
consideration of the motions filed, the Commonwealth Court concluded the action taken by DER was not a "demotion" as defined by the Act which would trigger the right to a hearing under § 951(a) and further determined the appeal rights available to Appellant are those set forth in § 951(b).
Sterling has filed a direct appeal from the summary judgment purportedly under § 723(a) of the Judicial Code, 42 Pa.C.S.A. § 723(a), being therefore construed as an appeal from a final order of the Commonwealth Court. As we stated recently in O'Brien v. Commonwealth of ...