Appeal from the Order of the State Civil Service Commission, in case of George J. Venesky v. Pennsylvania Liquor Control Board, Appeal No. 5023, dated October 24, 1985.
Sharon E. Holley, Assistant Counsel, with her, Eileen S. Maunus, Assistant Counsel, and Gary F. DiVito, Chief Counsel, for petitioner.
Thomas Rozycki, for respondent.
Judges Craig, Colins and Palladino, sitting as a panel of three. Opinion by Judge Colins. Dissenting Opinion by Judge Craig.
[ 101 Pa. Commw. Page 457]
The Pennsylvania Liquor Control Board (Board) appeals the decision of the State Civil Service Commission (Commission) which overruled the action of the Board in the non-selection of George J. Venesky (respondent) for promotion to the Enforcement Officer 4 Classification. The Commission further ordered, based upon principles of equitable estoppel, that the Board, in effecting its next promotion, promote petitioner to Enforcement Officer 4 Classification in any county for which petitioner indicated his availability.
In any action challenging non-selection, the party seeking to prove discrimination has the burden of proof pursuant to 4 Pa. Code § 105.16(a). Respondent alleges, in part, that his active participation as a Commissioned Officer in the Pennsylvania Army National Guard was a contributory factor in his not receiving the promotion at issue.
The record reflects that respondent was and still is employed by the Board as an Enforcement Officer, grade III, assigned to the Wilkes-Barre Office, Luzerne County, Pennsylvania.
[ 101 Pa. Commw. Page 458]
At all times relevant hereto, Mr. John Hale was Director of the Bureau of Enforcement for the Board. One of his responsibilities was nominating and presenting appointments and transfers. All such recommendations were subject to the approval of the Board. Respondent testified that from approximately March of 1983, Mr. Hale made various representations that respondent would, presumably through Mr. Hale's efforts, be promoted to the Enforcement Officer 4 position as supervisor of the appointing authority's Enforcement District 2 in Wilkes-Barre.
On May 25, 1983, two supervisory promotions without exam were voted on by the Board at an open meeting. Respondent was one of those promoted. Immediately thereafter, the Board decided to hold up the promotions. On June 9, 1983, the Board took official action and rescinded all promotions made in order to await completion of a Civil Service competitive examination.
Respondent indicated that he verbally learned of the May 25, 1983, promotion through a member of the Board's clerical staff. On May 27, 1983, the respondent was informed by Mr. Hale that the promotions were being held up. Respondent never received formal notification that he had received a promotion. Respondent testified that when Mr. Hale informed him of the rescission of the promotion, he also said that there was no problem and that he would take care of it.
In June of 1983, all exams were scheduled and held for the enforcement officer promotions. Respondent took part in the examination procedure. After the results of the Civil Service examination were tabulated, lists of eligible candidates were requested from the Commission. The lists contained names of ...