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decided: June 15, 1989.




Michael I. Levin, Frank P. Clark, Cleckner & Fearen, Harrisburg, for petitioner.

John Kane, Chief Counsel, James S. Marshall, Asst. Counsel, Barbara G. Raup, Chief Counsel, Harrisburg, for respondent.

Doyle and Smith, (p.), JJ., and Kalish, Senior Judge.

Author: Doyle

[ 126 Pa. Commw. Page 508]

This is an appeal by William K. Pannacci (Pannacci) from an order of the State Civil Service Commission (Commission) dismissing Pannacci's appeal from his nonselection for promotion to Chief Pharmacist at the Clarks Summit State Hospital operated by the Department of Public Welfare (Appointing Authority).

Pannacci was employed as a Pharmacist I, regular status, by the Appointing Authority. On January 9, 1985, the Appointing Authority posted a notice soliciting candidates for the position of Chief Pharmacist at the Hospital. The notice, in addition to describing the criteria for the job, contained a general statement that informed the reader that several optional methods to fill the position were available, including, inter alia, qualification by being on the civil service list or promotion without examination.

In addition, under a section of the notice entitled How to Apply, it stated: "Interested and qualified applicants must

[ 126 Pa. Commw. Page 509]

    submit . . . [certain information] under the 501 Promotion Without Examination Criteria." Thus, the notice did not specifically advise applicants to take a civil service examination or that taking such an examination would be a necessary prerequisite to being selected for the position. Two individuals applied for the vacant position, Pannacci, and Sandra Yadouga (Yadouga), who was also a Pharmacist I, and Pannacci's co-worker. Pannacci applied through the promotion without examination option. Yadouga applied based upon her standing on the civil service promotion list. By letter dated March 8, 1985, Pannacci was advised that the position to which he sought promotion was "being filled by promotion with examination and is being granted to another applicant."

Pannacci timely appealed his nonselection for the promotion, alleging discrimination.*fn1 However, he failed to state on his appeal form the specific reasons for his allegation of discrimination despite clear directions on the form that such failure could result in dismissal of the appeal. See 4 Pa.Code § 105.12(b) and (c) (stating the facts which should appear on an appeal request form where there is an allegation of discrimination and indicating possible dismissal of the actions where sufficient facts are not alleged).

Concomitant with his appeal from nonselection was Pannacci's contact with the Executive Director of the Commission requesting that he authorize an investigation of certain activities at the Hospital. The activities which were the subject of this request pertained to the selection process for the Chief Pharmacist position as well as other discriminatory treatment allegedly perpetrated against Pannacci because of his utilization of the employee grievance process on numerous occasions. Pannacci set forth the details of his discrimination claims in two letters to the Executive Director dated April 1 and April 5, 1985. The Executive

[ 126 Pa. Commw. Page 510]

Director replied to these letters, in part, as follows: "The material which you forwarded to me will be included in your appeal folder since it basically relates to the appeal request which you previously filed with this agency . . . ."

However, on April 18, 1985, the Commission dismissed Pannacci's appeal without a hearing because he had "not indicated acts which, if proven, would constitute discrimination, although requested to do so." That dismissal was timely appealed to this Court.

This Court subsequently vacated the Commission's dismissal order and remanded the matter for a hearing on the issue of whether the Appointing Authority violated Section 905.1 of the Civil Service Act (Act),*fn2 71 P.S. § 741.905a (prohibition against discrimination), on the basis that Pannacci's letter of April 1, 1985, contained sufficient additional information and allegations to comply with Commission regulation 105.12, 4 Pa.Code § 105.12, to prevent a dismissal of the appeal without a hearing. See Pannacci v. State Civil Service ...

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