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FRANCIS ALAN SEVER v. COMMONWEALTH PENNSYLVANIA (09/02/86)

decided: September 2, 1986.

FRANCIS ALAN SEVER, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, OFFICE OF ADMINISTRATION, AND CHARLES T. SCIOTTO, RESPONDENTS



Original Jurisdiction in the case of Francis Alan Sever v. Commonwealth of Pennsylvania, Department of Environmental Resources, Office of Administration, and Charles T. Sciotto.

COUNSEL

John R. Bonner, with him, James D. Casale, Casale & Bonner, for petitioner.

Thomas M. Crowley, Deputy Attorney General, with him, Andrew S. Gordon, Chief Deputy Attorney General, Chief, Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondents.

Judges Barry and Palladino, and Senior Judge Rogers, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 100 Pa. Commw. Page 218]

This action, filed by petitioner Francis Alan Sever and addressed to our original jurisdiction,*fn1 seeks a writ

[ 100 Pa. Commw. Page 219]

    of mandamus compelling the Commonwealth respondents to approve petitioner's applications for supplementary employment or, in the alternative, to allow petitioner to be compensated for the services he performed between January 4, 1985 and January 6, 1986. The Commonwealth respondents include: the Commonwealth of Pennsylvania, Department of Environmental Resources (DER), the Commonwealth of Pennsylvania, Office of Administration (OA), and Charles T. Sciotto, Deputy Secretary for Employe Relations of OA (Sciotto). Respondents filed a preliminary objection in the nature of a demurrer averring that the petition for review failed to state a cause of action upon which relief could be granted, in that petitioner has no enforceable legal rights or expectations to the writ he is seeking.*fn2

Petitioner is employed as a sanitary engineer by DER's Bureau of Water Quality in Williamsport, Pennsylvania. Petitioner desired to start his own side-business for the purpose of conducting feasibility studies, designing and securing federal licensing for hydro-electric generation facilities. Pursuant to Executive Order 1980-18, all employes, appointees, and officials in the Executive Branch of the Commonwealth must obtain prior approval of any supplementary employment from the Head of the Agency. Governor's Code of Conduct For Appointed Officials and State Employes,

[ 100 Pa. Commw. Page 2204]

Pa. Code ยง 7.156. To establish procedures for implementing Executive Order 1980-18, Murray G. Dickman, Secretary of Administration, issued Management Directive 515.18.

On January 4, 1985, petitioner submitted an application for approval of supplementary employment. Directive 515.18, section 5(b)(1) provides that the employe "shall be provided with agency notification of approval or disapproval within 15 working days of the dates of receipt of their requests." Petitioner's application was disapproved on September 16, 1985, in excess of eight months after the application was filed. On September 25, 1985, petitioner filed a timely request for review with OA*fn3 which, on December 23, 1985, was also denied.

In the interim, on September 12, 1985, petitioner filed a second application for supplementary employment. This application covered the exact same employment but was filed under the employer name of "White Coal Company". On November 26, 1985, this application was also denied. Petitioner requested ...


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