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ROBBIE C. HENDERSON v. COMMONWEALTH PENNSYLVANIA (02/08/88)

decided: February 8, 1988.

ROBBIE C. HENDERSON, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, OFFICE OF BUDGET, RESPONDENT



Appeal from the Order of the State Civil Service Commission, in the case of Robbie C. Henderson v. Office of the Budget, No. 5997.

COUNSEL

Gerard M. MacKarevich, with him, Ira H. Weinstock, Ira H. Weinstock, P.C., for petitioner.

Robert J. Schwartz, Assistant Counsel, with him, John D. Raup, Chief Counsel, for respondent.

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

Author: Macphail

[ 113 Pa. Commw. Page 307]

Petitioner, a probationary employee in the Office of the Budget (Office), was demoted from the position of Audit Specialist Trainee to Fiscal Assistant and, inasmuch as his temporary appointment to the Fiscal Assistant class would have terminated pursuant to his demotion, Petitioner's employment was terminated. Petitioner, thereupon, applied to the State Civil Service Commission (Commission) for reinstatement and back pay, alleging discriminatory action on the part of the Office.*fn1 We will vacate and remand.

After notice thereof was given, the Commission scheduled a hearing which was held January 15, 1986. At the conclusion of the presentation of Petitioner's evidence, counsel for the Office moved for dismissal of the Petitioner's complaint for failure to establish a prima facie case of discrimination. That motion was granted and the following order was entered:

AND NOW, appellant, having been removed from his position as Fiscal Assistant, probationary status, with the Office of the Budget, requested a hearing under Section 951(b) of the Civil Service Act, as amended. A hearing was scheduled for, and held on, January 15, 1986, in Harrisburg, Pennsylvania, before Commissioner Fred E. Bryan and Chairman Mary D. Barnes,

[ 113 Pa. Commw. Page 308]

    who presided. All parties in interest were notified and present at hearing at which time appellant failed to present evidence in support of his allegation of discrimination. Upon consideration of the prima facie case presented by the appointing authority and the appointing authority's motion to dismiss.

IT IS HEREBY ORDERED

     that the appeal of Robbie C. Henderson be and the same is hereby dismissed with prejudice.

Petitioner submits two issues for our determination; (1) did the Commission violate Section 951(b) of the Act, 71 P.S. § 741.951(b), Section 507 of the Administrative Agency Law, 2 Pa. C. S. § 507, and Section 105.15(16) of the Commission's regulations found at 4 Pa. Code § 105.15(16) and (2) did the Commission err as a matter of law in dismissing ...


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