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MARLO L. RODERICK v. COMMONWEALTH PENNSYLVANIA (03/26/85)

decided: March 26, 1985.

MARLO L. RODERICK, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, STATE CIVIL SERVICE COMMISSION, RESPONDENT



Appeal from the Order of the State Civil Service Commission in case of Marlo L. Roderick v. Department of Labor and Industry, Appeal No. 3454.

COUNSEL

Jack I. Kaufman, for petitioner.

Earl R. Dryer, Deputy Counsel, for respondent.

Richard C. Lengler, Assistant Chief Counsel, for intervenor, Department of Labor and Industry.

Judges Doyle and Palladino and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Doyle. Judge Williams, Jr., did not participate in the decision in this case.

Author: Doyle

[ 88 Pa. Commw. Page 394]

This is an appeal by Marlo L. Roderick (Appellant) from a decision and order of the State Civil Service Commission (Commission) dismissing Appellant's appeal as untimely filed. The sole issue for our consideration on appeal is whether the Commission abused its discretion in denying a continuance.

Appellant, by letter dated April 15, 1981, was notified by the Department of Labor and Industry, Office of Employment Security at Allentown (Appointing Authority) that because she had been absent from duty for more than five consecutive working days she would be presumed to have abandoned her position as an intermittent intake interviewer, U.C., regular status, effective April 13, 1981 and to have resigned. By letter dated May 20, 1981, Appellant requested that the Commission allow her to appeal nunc pro tunc*fn1 averring that she had been advised by the Appointing

[ 88 Pa. Commw. Page 395]

Authority that her personnel action was appealable to the Office of Employment Security in Allentown. By order dated June 30, 1981 Appellant's request to appeal nunc pro tunc was denied by the Commission without its having held a hearing. Appeal to this Court followed and in Roderick v. State Civil Service Commission, 76 Pa. Commonwealth Ct. 329, 463 A.2d 1261 (1983) this Court vacated the Commission's order and remanded the matter to the Commission directing it to hold a hearing to determine whether an appeal nunc pro tunc should be allowed.

The Commission scheduled a hearing for January 10, 1984 in Philadelphia. The parties were duly notified and counsel for both sides were advised in advance that the Commission would first hear evidence on whether Appellant had been misled by the Appointing Authority with respect to her appeal rights to the State Civil Service Commission. The Commission further advised counsel that they should be prepared to present evidence on the merits of the personnel action should the Commission rule that an appeal nunc pro tunc be allowed.

On January 9, 1984, counsel for Appellant requested a continuance because of anticipated bad weather. The Commission's Chairman, Mary D. Barnes, denied the request, but instructed Appellant's counsel (who apparently works or lives in the Allentown area) to contact a designated Commission representative at 6:30 a.m. on January 10, 1984 should bad weather actually materialize. Although bad weather did not materialize, on the morning of ...


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