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JAMES L. KEALY v. COMMONWEALTH PENNSYLVANIA (06/11/87)

decided: June 11, 1987.

JAMES L. KEALY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, RESPONDENT



Appeal from the Order of the State Civil Service Commission, in case of James L. Kealy v. Pennsylvania Liquor Control Board, No. 4601, dated April 24, 1986.

COUNSEL

Henry F. Coyne, for petitioner.

Eileen S. Maunus, Assistant Counsel, for respondent.

Judges Doyle and Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 106 Pa. Commw. Page 528]

This is a civil service appeal wherein James L. Kealy, petitions for review of an order of the State Civil Service Commission (Commission) entered upon remand following our decision in Kealy v. Pennsylvania Liquor Control Board, 90 Pa. Commonwealth Ct. 477, 496 A.2d 80 (1985) (Kealy I.). Kealy contends that the Commission's order granting relief in accordance with our decision in Kealy I is erroneous. We shall reverse in part and remand.

The underlying factual background of this case is set forth at length in Kealy I and need not be recited here. On July 19, 1985, we reversed the Commission's dismissal of Kealy's civil service appeal and found that the Pennsylvania Liquor Control Board (PLCB) discriminated against him by its application of its county-of-vacancy

[ 106 Pa. Commw. Page 529]

    promotion preference policy in violation of Section 905.1 of the Civil Service Act (Act).*fn1 The discrimination consisted of the PLCB's refusal to place Kealy, who lived in Northumberland County, on a certification list for a General Manager 1A position available at its Kulpmont, Northumberland County, store, solely because he was employed in a store outside of Northumberland County.

In our order of July 19, 1985, we remanded this matter to the Commission to fashion a remedy consistent with our finding of discrimination. On remand, the Commission awarded Kealy, as lost wages, the difference between what he earned as a Liquor Store Clerk II and what he would have earned as a General Manager 1A from July 19, 1985, until he was actually promoted to General Manager 1A. The Commission also directed the PLCB to offer Kealy the first General Manager 1A position to become available in Northumberland County and should Kealy turn down that position, his right to receive the wage differential would terminate. The Commission denied Kealy's request for back pay from March 25, 1983,*fn2 travel mileage reimbursement, and his request for counsel fees. Kealy appealed the Commission's relief order to this Court.

In this appeal, Kealy contends that the Commission erred (1) by refusing to grant him as lost wages the salary differential retroactive to March 25, 1983, rather than just to July 19, 1985; (2) denying him mileage reimbursement for the additional commuting distance

[ 106 Pa. Commw. Page 530]

    he had to travel as a result of his not obtaining the General Manager 1A position at Kulpmont; (3) denying his claim for counsel fees; and (4) that the PLCB was estopped from transferring another general manager to the Shamokin, Northumberland County, store where the vacancy occurred subsequent to ...


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