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SELIM A. ELIAS v. COMMONWEALTH PENNSYLVANIA (06/17/86)

decided: June 17, 1986.

SELIM A. ELIAS, M.D., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, POLK CENTER, RESPONDENT



Appeal from the Order of the State Civil Service Commission in the case of Re: Dr. Selim A. Elias v. Polk Center, Department of Public Welfare, Appeal No. 2613.

COUNSEL

Barbara L. Smith, Mahany, Roeder & Smith, for petitioner.

James S. Marshall, Assistant Counsel, for respondent.

Judges MacPhail, Doyle and Barry, sitting as a panel of three. Opinion by Judge Doyle. Concurring and Dissenting Opinion by Judge MacPhail.

Author: Doyle

[ 98 Pa. Commw. Page 220]

This is an appeal by the estate of Selim Elias, M.D., from a determination of the State Civil Service Commission (Commission) denying Dr. Elias an award of backpay for anticipated overtime and approving the action of the Department of Public Welfare (Appointing Authority) in offsetting from Dr. Elias' backpay the sum of $11,645.34 which sum Dr. Elias had earned from other employment during the period of his removal from public service. The estate also seeks interest for the period from the doctor's removal until the date of payment of the award. This case has had a tortuous procedural history but a basic understanding of the prior proceedings is necessary.

The Appointing Authority removed Dr. Elias from his position as a Physician II at Polk Center on October 3, 1978. Dr. Elias appealed this action to the Commission which sustained the appeal, reinstated Dr. Elias as of October 23, 1979, but declined to award backpay. Dr. Elias then filed a motion for reconsideration before the Commission requesting an award of backpay. The Commission denied the request and appeal to this Court followed. In Elias v. Department of Public Welfare, Polk Center, 57 Pa. Commonwealth Ct. 503, 426 A.2d 762 (1981) (Elias I), we remanded the matter to the Commission for specific findings of fact on the denial of backpay. Upon remand the Commission issued a supplemental adjudication and order again denying backpay. Dr. Elias again appealed to this Court which in Elias v. Department of Public Welfare, Polk Center, 70 Pa. Commonwealth Ct. 255, 452 A.2d 1127 (1982) (Elias II), reversed the Commission's order and awarded backpay "for the period of [Dr. Elias'] improper dismissal from employment commencing October 23, 1978, less appropriate deductions."*fn1 The Court thus remanded

[ 98 Pa. Commw. Page 221]

    the matter to the Commission again for a computation of the backpay. The Commission then, without conducting additional hearings or making additional findings, issued an order directing the Appointing Authority to pay Dr. Elias "any loss of wages or emoluments suffered during the period of October 3, 1978 to the date of his reinstatement, less any wages earned or benefits received under the Public Laws of Pennsylvania as established by a sworn statement to be submitted by [Dr. Elias.]" The Commission's power to enter this order emanates from Section 951(a) of the Civil Service Act (Act),*fn2 71 P.S. ยง 741.951(a).

At some point prior to January 21, 1983 Dr. Elias died. But on that date his wife and personal representative filed an affidavit claiming that under the Commission's order the estate was entitled to $48,534.40. The Appointing Authority maintains that it is liable to the estate for only $28,235.56. In April of 1983 the estate filed a petition with the Commission seeking enforcement of its order. In May of 1983 the Appointing Authority responded to the petition setting forth its position that it had complied with the order. The Commission approved the figure arrived at by the Appointing Authority and this appeal followed.

In order to understand the dispute in the amount owed it is necessary to examine the Commission's order as well as the breakdown of figures which the estate claims should be used and the breakdown actually employed by the Appointing Authority. Under the estate's

[ 98 Pa. Commw. Page 222]

    theory Dr. Elias is entitled to $48,534.40 based upon the following calculations. From January 1, 1978 until the date of his removal on October 3, 1978, a period of 276 days, Dr. Elias actually earned $36,087.21; this figure includes overtime. The estate therefore divided the $36,087.21 by 276 and arrived at per diem earnings of $130.75. The doctor remained removed for 385 days and hence the $130.75 figure was multiplied by 385 for a total of $50,338.75. As of July 1, 1979, Dr. Elias, had he been employed, would have received a raise of $5.30 per day. This raise would have applied to the 119 days he remained removed in 1979. Thus, the estate multiplied $5.30 times 119 days and arrived at a figure of $604.20 which it added to the $50,338.75 for a total of $50,942.95. The estate then considered $11,645.34 which Dr. Elias earned through "alternate employment." It offset this amount by a loss of $9,236.79 which the doctor sustained when he had to close his private practice, allegedly because of his unwarranted dismissal, and arrived at a figure of $2,408.55 which it then deducted from the $50,942.95 for a final total of $48,534.40 to which it now claims entitlement. The estate's computation is summarized as follows:

Income based on 1978 Wages

($130.75/day X 385 days) $50,338.75

July 1, 1979 raise

($5.30/day X 119 days) ...


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