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COMMONWEALTH PENNSYLVANIA v. PENNSYLVANIA HUMAN RELATIONS COMMISSION (04/28/86)

decided: April 28, 1986.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT,
v.
PENNSYLVANIA HUMAN RELATIONS COMMISSION, APPELLEE



Appeal from the Order of the Commonwealth Court of Pennsylvania at No. 2814 C.D. 1983, affirming the Order of the Pennsylvania Human Relations Commission at No. E-16935, Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Hutchinson, J., did not participate in the consideration or decision of this case. Papadakos, J., joins in the Majority Opinion and files a separate concurring opinion in which Flaherty, J., joins. Zappala, J., concurs in the result. Nix, C.j., files a dissenting opinion.

Author: Mcdermott

[ 510 Pa. Page 403]

OPINION

This is an appeal from the order of the Commonwealth Court affirming the Pennsylvania Human Relations Commission's determination that appellant, Commonwealth Department of Transportation (PennDOT), unlawfully discriminated against complainant, Richard E. Law, when it rejected his application for a position as Storekeeper II in the Berks County Maintenance Department on the basis of a non-job related handicap or disability.

While working as an equipment operator for PennDOT in 1976, complainant injured his back. The injury restricted his ability to safely lift heavy objects; his physician advised him to lift no more than twenty-five pounds. After reinjuring his back in early 1979, he was placed on permanent light duty and was soon assigned to work half of each work day in the Berks County Maintenance Department Storeroom. From April through October of 1979, complainant became familiar with the operation of the storeroom, and when an opening for the position of Storekeeper II was posted by PennDOT, he bid for the position. Another applicant, David Scrobe, also bid for the position. Neither complainant nor Scrobe were hired for the job. Eventually, an equipment operator, Kenneth Scheuring, was hired for the position.

On October 30, 1979, complainant filed a Complaint with the Pennsylvania Human Relations Commission (Commission) alleging that PennDOT refused to promote him on the basis of his handicap or disability, in violation of Section 5(a) of the Pennsylvania Human Relations Act (Act), 43 P.S. § 955(a), which states in pertinent part:

[ 510 Pa. Page 404]

§ 955. Unlawful discriminatory practices

It shall be an unlawful discriminatory practice, unless based upon a bona fide occupational qualification, or in the case of a fraternal corporation or association, unless based upon membership in such association or corporation, or except where based upon applicable security regulations established by the United States or the Commonwealth of Pennsylvania:

(a) For any employer because of the race, color, religious creed, ancestry, age, sex, national origin or non-job related handicap or disability of any individual to refuse to hire or employ, or to bar or to discharge from employment such individual, or to otherwise discriminate against such individual with respect to compensation, hire, tenure, terms, conditions or privileges of employment, if the individual is the best able and most competent to perform the services required.

43 P.S. § 955(a).*fn1

Prior to the hearing, counsel agreed that the case would be presented before the Chairperson of the designated three-member hearing panel, sitting alone, with the understanding that the other two designated panel members would review the complete record before making a recommended decision to the full Commission.*fn2 The hearing was held on November 8, 1982, and January 10, 1983.

On October 13, 1983, the Commission adopted the recommended Findings of Fact, Conclusions of Law, and Opinion of the hearing panel. In so doing, the Commission concluded: that complainant was a "handicapped or disabled person" within the meaning of the Act and pertinent regulations;

[ 510 Pa. Page 405]

    that his handicap or disability was not "job-related"; and that complainant was qualified for, and physically able to perform the duties of the Storekeeper II position. In support of this latter conclusion the Commission found that the position did not require heavy lifting, and "numerous persons were available to assist when heavy lifting was required."*fn3 The Commission also found that PennDOT did not promote the complainant to the position based upon its belief that he was unable to perform the job because of his disability; and held that such refusal violated the prohibition against job discrimination because of a non-job related handicap or disability. The Commission ordered, inter alia, that PennDOT offer complainant the next available position of Storekeeper II in the Berks County Maintenance Department and awarded complainant back pay based on the Storekeeper II salary.

On appeal, the Commonwealth Court affirmed the Commission's adjudication and order. Upon petition we granted allocatur.

Among the arguments*fn4 of PennDOT which the Commonwealth Court rejected was the procedural complaint that each member of the Commission was required, but failed, to review the entire record before rendering an adjudication. Appellant contends that the failure of all of the voting members of the Commission to review the record before voting to approve or reject the recommended findings, conclusions and order of the hearing panel violated its due process rights.

[ 510 Pa. Page 406]

Prior to the commencement of the hearing, appellant filed a "Motion to Insure Due Process Rights" in which it sought assurances from the Commission that all members who would vote on the outcome would first read the record. The Commission issued a pre-hearing order granting the motion only insofar as requiring the three commissioners assigned to hear the case to review the complete record before rendering a decision. At the commencement of the hearing, counsel for the appellant and the assistant general counsel to the Commission prosecuting the case stipulated that the commissioners who do not sit at the public hearing do not normally review the entire record, although the record is available to them. The recommendation of the three member hearing panel states that those three members considered the entire record, but there is no indication that any of the other commissioners reviewed the record before voting to approve the Recommendation.

In holding that due process is satisfied when the designated hearing panel reviews the record before making its Recommendation, the Commonwealth Court stated that the only statutory requirement is that "the recommended findings, conclusions and order made by said members or permanent hearing examiner shall be reviewed and approved or reversed by the Commission before such order may be served upon the parties to the complaint." Commonwealth, Department of Transportation v. Commonwealth, Pennsylvania Human Relations Commission, 84 Pa. Commw. 98, 106, 480 A.2d 342, 347 (1984). Section 9(g) of the Act, 43 P.S. § 959(g).*fn5

[ 510 Pa. Page 407]

We do not agree that the requirement that the full Commission review the recommended findings, conclusions, and order, is satisfied by a vacuous review of the Recommendation. The conclusions and order must be based on the findings of fact. No meaningful review of the findings of fact can be made without reference to the record. In order to properly review findings of fact, the record from which they are derived must be examined in order to determine if the findings are based on substantial evidence. To merely read the findings without examining the record in order to determine if those findings are supported is not to "review" those findings with the meaning and effect that tribunals regularly perform reviewing functions.

It is a principle of statutory construction that the legislature intends that every word of a statute is to be given meaning. Matter of Employees of Student Services, 495 Pa. 42, 432 A.2d 189 (1981); Commonwealth v. Driscoll, 485 Pa. 99, 401 A.2d 312 (1979). In order to make "review" (the operative verb in the sentence of Section 9(g) under scrutiny) meaningful, it must be interpreted to require at least a reference to the record by all voting commissioners to determine if the recommended findings of ...


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