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COMMONWEALTH PENNSYLVANIA v. SHARON A. NOUTCH (11/30/89)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: November 30, 1989.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, PETITIONER,
v.
SHARON A. NOUTCH, RESPONDENT

PETITION FOR REVIEW, (STATE CIVIL SERVICE COMMISSION).

COUNSEL

Timothy P. Wole, Asst. Chief Counsel, with him, Arthur R. Thomas, Asst. Chief Counsel, and Robert A. Greevy, Chief Counsel, for petitioner.

Barry F. Greenberg, for respondent.

Crumlish, Jr., President Judge, and Colins and McGinley, JJ.

Author: Crumlish

[ 130 Pa. Commw. Page 49]

OPINION

The Pennsylvania Board of Probation and Parole (Board) appeals a State Civil Service Commission (Commission) order overruling the Board's removal of Sharon Noutch from her position as a Clerk Typist 2, probationary status, and directing reinstatement with backpay. We vacate and remand to the Commission.

The Board discharged Noutch after discovering that she failed to disclose on her employment application that she was convicted of a summary criminal offense. Noutch appealed to the Commission on the basis of discrimination pursuant to Section 951(b) of the Civil Service Act (Act)*fn1 allowing such appeals by probationary employees.

Rather than conducting a Section 951(b) hearing, in which the burden is on the probationary employee to prove discrimination, the Commission elected to convene a special "investigatory hearing" under Section 951(d), 71 P.S. § 741.951(d). In this hearing, the Commission did not address discrimination issues; rather, it confined its investigation to whether Noutch falsified her job application.

[ 130 Pa. Commw. Page 50]

Following this Section 951(d) hearing, the Commission adjudicated Noutch's appeal by overruling her removal. Specifically, the Commission found that since Noutch was unaware of her criminal conviction, she did not intentionally falsify her job application. The Commission also concluded that the conviction for retail theft did not, in itself, amount to sufficient cause for the Board's decision to remove her.

The Board contends that the Commission abused its discretion in conducting an "investigatory hearing" under Section 951(d) to adjudicate Noutch's appeal of her removal from a probationary status position. We agree.*fn2

Section 951(d) provides:

Notwithstanding any other provisions of this section, the commission may, upon its own motion, investigate any personnel action taken pursuant to this act and, in its discretion, hold public hearings, record its findings and conclusions, and make such orders as it deems appropriate to assure observance of the provisions of this act and the rules and regulations thereunder.

71 P.S. § 741.951(d) (emphasis added).

The Commission's discretion to investigate under Section 951(d) does not empower it to make orders which circumvent or contravene other provisions in the Act. Department of Education v. Maskaly, 123 Pa. Commonwealth Ct. 272, 554 A.2d 146 (1989). Moreover, as we stated in Maskaly, Section 951(d) specifically deals with cases initiated by the Commission "upon its own motion," not appeals initiated by the employee. 123 Pa. Commonwealth Ct. at 276, 554 A.2d at 148.

By using Section 951(d) to adjudicate Noutch's appeal of her removal and otherwise overrule the Board's

[ 130 Pa. Commw. Page 51]

    personnel decision, the Commission circumvented the established rule placing the burden on the dismissed probationary employee to prove that removal was based on discriminatory nonmerit factors. Cunningham v. State Civil Service Commission, 17 Pa. Commonwealth Ct. 375, 332 A.2d 839 (1975). Such claims may be adjudicated only under Section 951(b). Pronko v. Department of Revenue, 114 Pa. Commonwealth Ct. 428, 539 A.2d 456 (1988).

Accordingly, we vacate the Commission's order and remand with instructions to proceed in accordance with Section 951(b).*fn3

Order

The order of the State Civil Service Commission at Appeal No. 8047, dated January 27, 1989, is vacated and the matter is remanded to the Commission for proceedings not inconsistent with this Court's opinion.

Jurisdiction relinquished.


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