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ELEANOR L. DOUGHERTY v. COMMONWEALTH PENNSYLVANIA (02/23/88)

decided: February 23, 1988.

ELEANOR L. DOUGHERTY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF HEALTH, RESPONDENT. LAVINIA E. BRADFORD, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF HEALTH, RESPONDENT. GRACE M. VOGAN, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF HEALTH, RESPONDENT. PATRICIA A. SANDERS, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF HEALTH, RESPONDENT. VALETTA J. ZEMKO, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF HEALTH, RESPONDENT. RAMONA L. VUKSAN, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF HEALTH, RESPONDENT



Appeals from the Order of the State Civil Service Commission, in the cases of Eleanor L. Dougherty, Appeal No. 6763; Lavinia E. Bradford, Appeal No. 6762; Grace M. Vogan, Appeal No. 6765; Patricia A. Sanders, Appeal No. 6764; Valetta J. Zemko, Appeal No. 6767 and Ramona L. Vuksan, Appeal No. 6766, dated April 16, 1987.

COUNSEL

Nancy J. McCauley, Kirschner, Walters & Willig, for appellants.

Stephen D. Tompkins, Assistant Counsel, with him, Jonathan P. Neipris, Chief Counsel, for appellee.

Judges Doyle and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 113 Pa. Commw. Page 621]

Before us are the consolidated appeals of six employees who were furloughed from their positions as

[ 113 Pa. Commw. Page 622]

    screening technicians, regular status, with the Department of Health (Appointing Authority) effective August 5, 1986 on the basis of a lack of work. The employees appealed their furloughs to the State Civil Service Commission (Commission) which, in virtually identical adjudications, upheld the furloughs.

The Commission found that the employees had been employed in the Appointing Authority's Division of Chronic Diseases, High Blood Pressure Control Program (Program). In 1984 the Appointing Authority analyzed the Program and concluded that its cost was disproportionate to the number of persons it could serve. The Program's limited availability and prohibitive cost led the Appointing Authority to seek other ways to administer blood pressure screenings to the public. Accordingly, it contracted with Quality Medicals Inc. (Quality) to administer the screenings. In line with this contracting out of services, the Appointing Authority furloughed all employees who had performed screenings for its Program. The Commission upheld the furloughs and this appeal ensued.

Preliminarily, we note that our scope of review of a Commission order is limited to determining whether there is substantial evidence of record to support the findings of fact or whether there has been a constitutional violation or an error of law. Section 704 of the Administrative Agency Law, 2 Pa. C. S. § 704. Credibility determinations are within the Commission's province. Vovakes v. Department of Transportation, 71 Pa. Commonwealth Ct. 3, 453 A.2d 1072 (1982). On appeal here the employees raise three basic issues. First, they contend that the Commission committed legal error in determining that the furloughs were based upon a valid lack of work. Second, they assert that there is not substantial evidence that the contracting out of services resulted in greater efficiency. Third, they maintain that

[ 113 Pa. Commw. Page 623]

    the Commission committed legal error in sustaining these furloughs when it had found prior furloughs based upon a similar factual matrix to be violative of Section 802 of the Civil Service Act.*fn1 We will address these issues seriatim.

It is well settled that a furlough of a state civil servant may only be validly implemented on the basis of a lack of work or a lack of funds. Eastern Pennsylvania Psychiatric Institute v. Russell, 77 Pa. Commonwealth Ct. 390, 465 A.2d 1313 (1983); Section 3(s) of the Civil Service Act, 71 P.S. § 741.3(s). And, when the furlough is of a regular status employee, the Appointing Authority bears the burden of demonstrating the lack of work or the lack of funds. Department of State v. Stecher, 506 Pa. 203, 484 A.2d 755 (1984); 4 Pa. Code § 105.15. Further, it is settled that the lack of work must precede the elimination of the positions. Weir v. Department of Labor and Industry, 84 Pa. Commonwealth Ct. 127, 479 A.2d 646 (1984). The employees here contend that because numerous Commonwealth residents (3.2 million) were in need of screening services there was no lack of work. This argument misses the point. The relevant inquiry is whether there was a valid lack of work within the Appointing Authority ; once the work was contracted out, there was a valid lack of work. We have previously held that the ...


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