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BARNET ROETENBERG v. COMMONWEALTH PENNSYLVANIA (11/14/88)

decided: November 14, 1988.

BARNET ROETENBERG, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, OFFICE OF BUDGET, RESPONDENT. JOHN S. WOELFL, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, OFFICE OF BUDGET, RESPONDENT. COMMONWEALTH OF PENNSYLVANIA, OFFICE OF THE BUDGET, PETITIONER V. JOHN S. WOELFL, RESPONDENT. COMMONWEALTH OF PENNSYLVANIA, OFFICE OF THE BUDGET, PETITIONER V. BARNET ROETENBERG, RESPONDENT



Appeals from the Orders of the Civil Service Commission, in the case of Barnet Roetenberg v. Office of Budget, Appeal No. 4640, and in the case of John S. Woelfl v. Office of Budget, Appeal No. 4641, dated February 22, 1985.

COUNSEL

Edgar R. Casper, Gross, Casper & Feld, for petitioners, Barnet Roetenberg and John S. Woelfl.

Frank A. Fisher, Jr., Acting Chief Counsel, with him, Arlene F. Klinedinst, for respondent, Office of the Budget.

Debra K. Wallet, Blank and Wallet, for intervenor, William Braucher.

Judges Doyle and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Doyle. Judge MacPhail did not participate in the decision in this case.

Author: Doyle

[ 121 Pa. Commw. Page 99]

Before us for our consideration are cross-appeals filed by the Commonwealth of Pennsylvania, Office of the Budget (OB) and by Barnet Roetenberg (Roetenberg) and John S. Woelfl (Woelfl), each as an individual, from two separate orders of the State Civil Service Commission (Commission). The Commission issued the two orders in question and the accompanying adjudications on remand in response to our Court's opinion and order in Roetenberg v. Office of Budget, 97 Pa. Commonwealth Ct. 316, 509 A.2d 910 (1986), (Roetenberg I) which remanded the two cases for further proceedings. Also before us are (1) an application for intervention filed on behalf of William F. Braucher and (2) a motion for court action on Braucher's application for intervention.

This case is a procedural thicket. It also involves certain questions of first impression concerning the Civil Service Act, Act of August 5, 1941, P.L. 752, as amended, 71 P.S. §§ 741.1 -- 741.1005, and the Act of

[ 121 Pa. Commw. Page 100]

December 13, 1982, P.L. 1127, as amended, 71 P.S. §§ 2031 -- 2035 (Costs Act). We shall endeavor to dispose of the numerous problems which confront us in an organized manner beginning first with a somewhat lengthy, but in our view necessary, recitation of the facts and procedural history.

The genesis of this matter can be traced back to June 1983 at which time Roetenberg, Woelfl and Braucher along with one other individual (Wightman, whose situation is not particularly relevant herein) were notified that they would be furloughed from their Accounting Executive I positions within the Comptroller's Office in OB effective July 29, 1983.*fn1 The furloughees were offered Accountant III positions (i.e., demotions in lieu of furloughs). Roetenberg and Braucher accepted the positions. Woelfl did not and was furloughed. Both Roetenberg and Woelfl, however, in mid-July 1983, filed individual appeals with the Commission challenging the propriety of their furloughs.*fn2 Subsequent to the filing of the appeals, but before the Commission held its hearing, (on July 20, 1984) certain other personnel actions occurred within OB which are of critical significance for an understanding of this case.

Effective August 2, 1983, just two business days after the furlough became effective, OB reassigned two of the remaining seventeen Accounting Executive Is within the comptroller's office (Higgins and Deemer). One was reassigned to the Bureau of Financial Management

[ 121 Pa. Commw. Page 101]

    and the other to the Bureau of Operations Review. This left fifteen Accounting Executive Is within the comptroller's office at OB. OB then reassigned two other individuals, Herr and Wineholt, to Accounting Executive I positions within the comptroller's office again bringing the total to the desired seventeen. See supra n.1. Although all of this evidence was before the Commission in its original hearing, the majority opinion did not make any findings on the propriety of these various reassignments as they impacted upon furlough recall rights. However, then Commission Chairman Mary D. Barnes, in her dissenting opinion did make such findings and opined that the reassignments of Herr and Wineholt into the Accounting Executive I positions, which reassignments occurred subsequent to the furloughs in question, were improper in that they, inter alia, violated the recall rights of the furloughees as set forth in Section 802 of the Civil Service Act, 71 P.S. § 741.802. That Section states:

In case a reduction in force is necessary in the classified service, no employe shall be furloughed while any probationary or provisional employe is employed in the same class in the same department or agency, and no probationary employe shall be furloughed while a provisional employe is employed in the same class in the same department or agency. An employe shall be furloughed only if at the time he is furloughed, he is within the lowest quarter among all employes of the employer in the same class on the basis of their last regular service ratings, and within this quarter he shall be furloughed in the order of seniority unless there is in existence a labor agreement covering the employes to be furloughed, in which case the terms of such labor agreement relative to a furlough procedure

[ 121 Pa. Commw. Page 102]

    shall be controlling: Provided, That the appointing authority may limit the application of this provision in any particular instance to employes in the same class, classification series or other grouping of employes as referred to in any applicable labor agreement, and which are in the same department or agency with headquarters at a particular municipality, county or administrative district of the Commonwealth.

A furloughed employe shall have the right of return to any class and civil service status which he previously held, provided such class is contained in the current classification plan of the agency; or to any class and civil service status in the same or lower grade, provided that he meets the minimum qualifications given in the classification plan of the agency. The appointing authority shall promptly report to the director the names of employes furloughed, together with the date the furlough of each is effective and the character of his services. Under the rules a regular employe furloughed shall for a period of one year be given preference for reemployment in the same class of position from which he was furloughed and shall be eligible for appointment to a position of a similar class in other agencies under this act unless the terms of an existing labor agreement preclude the employe from receiving the preferential treatment contained in this section in which event the terms of the labor agreement shall be controlling, provided that in case of a promotion of another employe such preference shall not be effective if it necessitates furloughing such other employe unless the terms of an existing labor agreement require

[ 121 Pa. Commw. Page 103]

    that such preferential treatment shall be given to the furloughed employe.

The Commission dismissed Roetenberg's and Woelfl's appeals. Roetenberg and Woelfl then appealed to this Court. In Roetenberg I we determined that the Commission erred "in not considering the effect of Section 802 on [Roetenberg's and Woelfl's] appeals. . . ." 97 Pa. Commonwealth Ct. at 319, 509 A.2d at 911. We further stated, "[t]he Commission, since it failed to consider Section 802, made no findings as to whether either or both [Roetenberg and Woelfl] were entitled to the rehiring preferences of Section 802 or if one or both of the other two individuals should have been rehired." Id. at 319, 509 A.2d at 912. Accordingly, we remanded to the Commission to make findings on this issue. Unfortunately, our language in Roetenberg I was not as precise as it might have been*fn3 and seems to have created some slight additional confusion.

Upon remand two problems arose. First, the parties disagreed as to whether our Court, in addressing the recall issue, had determined as a matter of law (1) that two individuals' recall rights had been violated and the Commission was only to determine which two individuals, or (2) that the Commission was to decide whether any recall rights had been violated at all. As to the second problem, on remand, it was agreed by the parties that the priority of recall, if in fact recall was warranted, should have been 1 -- Braucher, 2 -- Roetenberg, 3 -- Woelfl, and 4 -- Wightman. Counsel for Roetenberg and Woelfl believed that Braucher, who had not been a party to the action, should be notified that his rights may have been affected by Roetenberg I and could be affected by any decision the Commission would make as the

[ 121 Pa. Commw. Page 104]

    result of the remand. He endeavored to persuade the Commission to notify Braucher of his possible interest in the litigation. The Commission, however, believed that because Braucher and Wightman had not asserted any claim before the Commission concerning their furlough or recall rights, they could not be granted a right to participate actively in the proceedings. Counsel for Roetenberg and Woelfl then, much to his credit, took it upon himself to advise Braucher of this Court's opinion in Roetenberg I and further advised Braucher to secure legal counsel. Braucher also (whether with or ...


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