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decided: July 31, 1987.


Original jurisdiction in the case of Council 13, American Federation of State, County and Municipal Employees, AFL-CIO, by its Trustee Ad Litem, Edward J. Keller v. Commonwealth of Pennsylvania, The Honorable Richard Thornburgh, Governor of the Commonwealth of Pennsylvania, et al.


Stuart W. Davidson, with him, Alaine S. Williams, Kirschner, Walters & Willig, for petitioner.

Susan J. Forney, Senior Deputy Attorney General, with her, Andrew S. Gordon, Deputy Attorney General, Robert J. Schwartz, Deputy Attorney General, Debra K. Wallet, Deputy Attorney General, Allen C. Warshaw, Deputy Attorney General, Chief, Litigation Section, LeRoy S. Zimmerman, Attorney General, for respondents.

President Judge Crumlish, Jr., and Judges Craig, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by President Judge Crumlish, Jr. Judges MacPhail, Barry and Palladino dissent.

Author: Crumlish

[ 108 Pa. Commw. Page 156]

In April 1982, the legislature enacted amendments to the Commonwealth Public Welfare Code*fn1 provisions

[ 108 Pa. Commw. Page 157]

    establishing a Community Work Experience Program (CWEP).*fn2 Individuals receiving aid to families with dependent children or general assistance benefits were, with certain enumerated exceptions, required to register for employment, training and manpower services. Commonwealth departments, agencies and political subdivisions could submit proposed community work projects to the Department of Public Welfare (DPW) and, if approved, would receive CWEP registrants. Hired applicants would work approximately fifty hours a month at a minimum wage level.

As the CWEP was being implemented, Council 13, American Federation of State, County and Municipal Employees, AFL-CIO (AFSCME), the certified bargaining unit for Commonwealth employees, filed a petition for review in this Court's original jurisdiction*fn3 requesting declaratory and injunctive relief as to the usurpation of AFSCME bargaining unit positions by CWEP workers. AFSCME's injunctive action, filed in May 1983, was stayed by mutual consent of the parties so that arbitration concerning specific grievances of the existing collective bargaining agreement could be pursued.

Finding the outcome of that proceeding unsatisfactory, AFSCME filed a motion for summary judgment on October 16, 1986. This motion was subsequently amended to be regarded and acted upon as a motion for judgment on the pleadings.*fn4 The Commonwealth filed

[ 108 Pa. Commw. Page 158]

    its cross-motion for summary judgment on February 27, 1987.

In support of its motion for summary judgment, the Commonwealth has submitted eight affidavits*fn5 of department officials who reviewed the implementation of the CWEP. In rebuttal, AFSCME presents the affidavit of its Director of the Grievance Department, the transcript of the arbitration proceeding, and arbitrator Arvid Anderson's decision.

[ 108 Pa. Commw. Page 159]

When considering a motion for judgment on the pleadings, a court must limit its review of the facts to those appearing in the pleadings themselves. Puleo v. Broad Street Hospital, 267 Pa. Superior Ct. 581, 407 A.2d 394 (1979). The moving party admits the truth of all allegations of his adversary and the untruth of his own allegations which have been denied. Tate v. Pennsylvania Page 159} Board of Probation and Parole, 40 Pa. Commonwealth Ct. 4, 396 A.2d 482 (1979). Judgment on the pleadings should be granted only when the case is free from doubt and trial would be a fruitless exercise. City of Philadelphia v. Hennessey, 48 Pa. Commonwealth Ct. 600, 411 A.2d 567 (1980).

In ruling on a motion for summary judgment, a court must consider not only the pleadings but other documents of record, such as affidavits and exhibits. See Spain v. Vicente, 315 Pa. Superior Ct. 135, 461 A.2d 833 (1983). Again, however, for summary judgment to be entered, the movant's right must be clear and no doubt as to a genuine issue of fact exist. Simpson v. Pennsylvania Board of Probation and Parole, 81 Pa. Commonwealth Ct. 432, 473 A.2d 753 (1984).

The Federal enabling act, 42 U.S.C. § 609, authorizes states to establish a CWEP so as to "provide experience and training for individuals not otherwise able to obtain employment, in order to assist them to move into regular employment." This Commonwealth's implementing provisions recognize and adhere to federal regulations delineating CWEP operating procedures. Sections 405, 405.1, 405.2 of the Public Welfare Code, 62 P.S. §§ 405, 405.1, 405.2. For our purposes, 45 C.F.R. § 238.52, establishes certain project requirements:

The state plan must provide that CWEP projects --

(b) Do not result in the displacement of persons currently employed or the filling of established, unfilled position vacancies. This means that CWEP participants may not perform tasks which would have been undertaken by employees or which have the effect of reducing the work of employees. However, CWEP participants

[ 108 Pa. Commw. Page 160]

    may perform the same type of tasks as performed by employees;

(e) Have not been developed in response to, or in any way associated with, the existence of a strike, lockout or other bona fide labor dispute, nor can the project violate any existing labor agreement between employees and employers.

These constraints are mirrored in pertinent Commonwealth regulations. 62 P.S. § 405.2.

In its petition for review, AFSCME alluded to the December 1982 state hiring freeze and the serious decline in bargaining unit positions, resulting in some 5,000 vacant positions from 1979 to 1983. Petition for Review, paragraphs 15, 16, 17. Next, after citing the controlling federal and state CWEP provisions, AFSCME averred, specifically:

25. Since January, 1983, the Commonwealth of Pennsylvania has sought to employ GA and AFDC recipients under the CWEP project and assign them to job classifications in the AFSCME bargaining units. At this time, Respondents Dickman and Zervanos have, to date, assigned CWEP participants to laborer, custodian, and clerical jobs, among others, in the following departments: Aging, Education, Environmental Regulation, Fish and Game Commission, General Services, Health, Historical and Museum Commission, Insurance, Revenue and Transportation. Additional assignments are anticipated.

26. As of April 25, 1983, Respondents Dickman and Zervanos advised AFSCME that the Commonwealth was placing approximately 1,000 CWEP participants into AFSCME bargaining unit positions. Exhibit 'C.'

[ 108 Pa. Commw. Page 161]

The Commonwealth, in its answer, responded:

25. ADMITTED that since January, 1983, the Commonwealth of Pennsylvania has placed GA and AFDC recipients under the CWEP program in job classifications assigned to AFSCME bargaining units. It is also ADMITTED that CWEP participants assigned to laborer, custodian and clerical jobs have been placed in the departments listed and that additional assignments are anticipated. It is DENIED that Respondents Dickman and Zervanos actually assigned CWEP participants.


Upon these answers, AFSCME supports its motion for judgment on the pleadings. AFSCME's petition and its memoranda in support of its motion for judgment on the pleadings indicate that it is seeking a declaration that the creation of the CWEP in this Commonwealth violated statutory requirements because vacant, permanent employee positions were being filled by CWEP workers. The Commonwealth responds that the two paragraphs should not be viewed in a vacuum and that when read in conjunction with the remaining answers to the petition for review*fn6 an ambiguity as to the definition of the term "AFSCME bargaining unit position" is created.

Our review of the pleadings, however, presents several factual issues which preclude judgment being entered thereon. Indeed, the Commonwealth denied all express averments which stated that the CWEP violated state and federal law. Moreover, AFSCME represents

[ 108 Pa. Commw. Page 162]

    over 60,000 statewide bargaining unit positions classified into numerous levels, districts and divisions. In light of the Commonwealth's complex organization and management process over its personnel, the many factors which impact on the term AFSCME bargaining unit preclude an entry of a judgment on the pleadings. This dichotomy will be reviewed more fully below.

Turning to the Commonwealth's motion for summary judgment, we note that it relies on the various officials' affidavits*fn7 to support its argument that CWEP has been implemented and operated consistent with federal and state regulations. The Commonwealth readily admits that numerous, vacant AFSCME bargaining unit positions exist, however, it asserts that CWEP assignments were reviewed so as to not impact on AFSCME positions which were vacant, had a recall list in place, or had employees with placement rights to the job.*fn8 For example, if the Philadelphia district had openings

[ 108 Pa. Commw. Page 163]

    in the laborer position, no CWEP workers would be assigned thereto. However, if in Pittsburgh the complement were full, CWEP workers could perform laborer duties.

The Federal enabling act and implementive regulations clearly recognize that state agencies would be participants in the CWEP. However, the federal guidelines are specific in that CWEP assignments not infringe on regular state employment personnel. This promulgation precludes assignment to working, furloughed and vacant personnel positions.

For this Court to determine in a summary fashion that such violations have or have not occurred is certainly a burdensome task. However, upon review of the Commonwealth affidavits and the arbitration transcript and decision, certain salient factors come into focus which permit this Court to enter judgment at this time.

This action was initiated in May 1983 with a request for a preliminary injunction. This Court's docket reflects that soon thereafter AFSCME requested a continuance of argument scheduled thereon. Praecipe for relisting was again withdrawn on January 4, 1984, so that arbitration could be sought. Active litigation in this Court did not recommence until October 16, 1986, when

[ 108 Pa. Commw. Page 164]

AFSCME filed its motion for summary judgment (later amended to motion for judgment on the pleadings).

The two days of arbitration hearings in March and May 1984 led the arbitrator to conclude in a well-reasoned opinion dated June 20, 1985, that "for the most part the CWEP program has been carried out without violating either the CWEP program guidelines or AFSCME's collective bargaining agreement. But, there are significant exceptions where the record shows that CWEP program participants were assigned to do work that normally would be performed by regular Commonwealth employees and would have been performed by them in the absence of the availability of CWEP participants."*fn9

The arbitrator then directed the Commonwealth to discontinue assigning CWEP workers at four projects but upheld the assignments at six other projects.

The Commonwealth affidavits, which for the most part are dated February 1987, acknowledge that these violations had occurred in the past but that remedies have been effectuated since then.*fn10

[ 108 Pa. Commw. Page 165]

AFSCME does not at this time challenge any present Commonwealth CWEP assignment practices.

Thus, this Court is reviewing past practices which the Commonwealth admits constituted violations of federal and state CWEP guidelines. Hence, since the Commonwealth seeks summary judgment on the ground that undisputed facts entitle it to judgment as a matter of law, judgment is denied.

Moreover, in the interest of judicial economy and taking notice of the arbitrator's retention of jurisdiction over grievance procedures, we shall proceed further in this matter and consider whether summary judgment should be entered in favor of AFSCME, although it did not move for such relief. Bensalem Township School District v. Commonwealth, 105 Pa. Commonwealth Ct. 388, 524 A.2d 1027 (1987).

[ 108 Pa. Commw. Page 166]

AFSCME seeks to have this Court declare that CWEP assignments to bargaining unit positions violate federal and state law. To the extent the record reveals past violation of these acts, summary judgment is granted in favor of AFSCME.


Petitioner's motion for judgment on the pleadings is denied.

Respondents' cross-motion for summary judgment is denied.

Summary judgment is entered in favor of Petitioner.

Judges MacPhail, Barry and Palladino dissent.


Motion for judgment on pleadings denied. Cross-motion for summary judgment denied. Summary judgment entered in favor of petitioner.

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