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JAMES R. COLSTON v. COMMONWEALTH PENNSYLVANIA (02/23/87)

decided: February 23, 1987.

JAMES R. COLSTON, JR., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF COMMUNITY AFFAIRS, RESPONDENT



Original Jurisdiction in the case of James R. Colston, Jr. v. Commonwealth of Pennsylvania, Department of Community Affairs.

COUNSEL

Melville G. M. Walwyn, Dade, Harris & Walwyn, P.C., for petitioner.

Bernadette Barattini, Assistant Counsel, with her, Michael A. Donadee, Chief Counsel, for respondent.

Judges MacPhail, Doyle and Colins, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 104 Pa. Commw. Page 166]

In this unique case, our Court must rule upon the Petition of the Department of Community Affairs (Department) to open a peremptory judgment directed to be entered by this Court on May 23, 1986.

It is necessary to review the procedural history of this case.*fn1 James Colston was dismissed as a management employee by the Department for willful violation of the Governor's Code of Conduct*fn2 and the State Ethics Act.*fn3 On February 27, 1986 the State Civil Service Commission (Commission) reversed the dismissal and ordered Colston's reinstatement with back pay. The Department filed a petition for review with this Court to

[ 104 Pa. Commw. Page 167]

No. 849 C.D. 1986 which was argued on the merits before this Court immediately after the argument was heard on the proceedings sub judice.

On April 8, 1986, Colston filed a petition for review in the nature of mandamus in this Court's original jurisdiction, contending that since no stay or supersedeas of the Commission's order had been requested or granted, he was entitled to enforcement of that order. The Department's answer admitted that no stay or supersedeas had been sought but contended inter alia that the filing of its petition for review in our appellate jurisdiction*fn4 constituted an automatic stay of the Commission's order.

Thereafter, on May 12, 1986, Colston filed a motion for special relief in the nature of peremptory judgment pursuant to Pa. R.C.P. No. 1098,*fn5 and costs. We ordered the matter for argument and, on May 23, 1986, the author of this opinion as duty Judge, entered an order and memorandum opinion granting Colston's motion for peremptory judgment.*fn6

The Department requested reconsideration which we denied. The Department then filed the instant petition to open on June 23, 1986 and, on July 3, 1986, also filed a petition for allowance of appeal with our Supreme Court. On January 7, 1987, the Supreme Court denied that petition.

In view of our order in No. 849 C.D. 1986 which vacates the Commission's order and remands the case to the Commission for further consideration, it now appears that ...


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