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JAMES C. MCHALE v. COMMONWEALTH PENNSYLVANIA (08/28/86)

decided: August 28, 1986.

JAMES C. MCHALE, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT



Appeal from the Order of the State Civil Service Commission in the case of James C. McHale v. Department of Transportation, Appeal No. 5407, dated December 13, 1984.

COUNSEL

Lawrence A. Durkin, for petitioner.

Joel M. Ressler, Deputy Attorney General, with him, Allen C. Warshaw, Chief Deputy Attorney General, Chief, Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondent.

Judges Doyle and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish. Concurring and Dissenting Opinion by Judge Doyle.

Author: Kalish

[ 100 Pa. Commw. Page 149]

Petitioner, James C. McHale, petitions for review of an order of the State Civil Service Commission (Commission), which denied his request for a hearing and dismissed his discrimination charge. Petitioner's petition for review seeks to invoke this court's original jurisdiction pursuant to 42 Pa. C.S. § 761 and our appellate jurisdiction pursuant to 42 Pa. C.S. § 763. In our original jurisdiction, petitioner seeks relief in the nature of mandamus. We note initially that petitioner has improperly sought to invoke our original jurisdiction. Where a Commonwealth agency has finally denied a request for a hearing, review thereof is properly, and solely, addressed to our appellate jurisdiction. O'Brien v. State Page 150} Employees' Retirement System, 503 Pa. 414, 469 A.2d 1008 (1983). We will, therefore, dismiss the petition for review to the extent that it seeks to invoke our original jurisdiction.

Petitioner works for the Department of Transportation (DOT) in Engineering District 4-0. DOT's Bureau of Personnel conducted a classification and organization survey of petitioner's office in October, 1983. As a result of the survey, petitioner, who had previously been classified as a Traffic Control Specialist Supervisor (Pay range 41), was reclassified downward to Traffic Control Specialist (Pay range 38). The reclassification allegedly reflected his current job duties. After receiving notice of his reclassification, petitioner timely notified the Commission of his desire to appeal, and to have a hearing on the reclassification decision. Petitioner filed his appeal using the Commission's appeal request form, and indicated on the form that he was appealing a "demotion" under section 951(a) of the Civil Service Act (Act), Act of August 5, 1941, P.L. 752, as amended, 71 P.S. § 741.951(a) (Purd. Suppl. 1985), and an "act of discrimination" under section 951(b) of the Act, 71 P.S. § 741.951(b). The Commission, after conducting an investigation, issued an order on December 13, 1984, which denied petitioner's request for a hearing and dismissed his appeal.

On appeal, petitioner contends that he was entitled to a hearing since he was demoted and that the change in his employment status constituted an improper and discriminatory demotion because it was based on nonmerit factors. Our scope of review of a Civil Service Commission order is limited to a determination of whether constitutional rights were violated, or whether findings of fact are supported by substantial evidence. Johnson v. Department of General Services, 91 Pa. Commonwealth Ct. 96, 496 A.2d 1268 (1985).

[ 100 Pa. Commw. Page 151]

A Civil Service employee who appeals to the Commission pursuant to section 951(a) of the Act, on the ground that he or she was improperly demoted, must show first that a demotion and not a reclassification downward, did in fact occur. See Johnson.

In Carr v. Department of Public Welfare, 72 Pa. Commonwealth Ct. 78, 456 A.2d 240 (1983), a state employee's duties were reclassified, but his pay classification remained the same. There, this court held that no demotion took place. However, in Lawrence v. Department of Labor and Industry, 69 Pa. Commonwealth Ct. 628, 452 A.2d 108 (1982), where a state employee's promotion to a higher class was retracted, this court concluded that the retraction was really a demotion. Where an employee retains his or her classification and salary range, no demotion can be said to have occurred. Shaefer v. West Chester State College, 54 Pa. Commonwealth Ct. 327, 421 A.2d 502 (1980).

DOT contends that petitioner was not demoted since his salary remained the same. However, the fact that petitioner's current rate of compensation remained the same is irrelevant to determining whether he was demoted. What is important is that the maximum salary for a Traffic Control Specialist Supervisor during the time when petitioner was reassigned was higher than the maximum salary for a Traffic Control Specialist, a non-supervisory position. Section 3(r) defines a demotion as "a change [in status] to a position in a class carrying a lower maximum salary." Under the plain meaning of section 3(r), petitioner's reassignment was a demotion.

Section 951(a) of the Act, 71 P.S. § 741.951(a), grants a regular employee the right to a hearing on the merits for a violation of the Act resulting in permanent separation, suspension for cause, furlough or demotion. ...


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