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07/28/97 JOHN A. GRESOCK v. CITY PITTSBURGH CIVIL

July 28, 1997

JOHN A. GRESOCK, JR.
v.
CITY OF PITTSBURGH CIVIL SERVICE COMMISSION, APPELLANT



Appealed From No. S.A. 94-3358. Common Pleas Court of the County of Allegheny. Judge WATSON.

Before: Honorable Dan Pellegrini, Judge, Honorable Jim Flaherty, Judge, Honorable Silvestri Silvestri, Senior Judge. Opinion BY Judge Flaherty.

The opinion of the court was delivered by: Flaherty

OPINION BY JUDGE FLAHERTY

Filed: July 28, 1997

The City of Pittsburgh (City) appeals from an order of the Court of Common Pleas of Allegheny County (trial court) reversing the decision of the City of Pittsburgh Civil Service Commission (Commission) denying the appeal of John A. Gresock, Jr. (Claimant) concerning the termination of his employment for economic reasons. We affirm.

Claimant was a project architect for the City in the Department of Engineering and Construction (Department) for almost four years. On August 5, 1994, the City terminated Claimant to derive the economic benefits from a workforce reduction.

The Mayor's budget office directed the Department Director, Fred Reginella, to reduce his overall budget by twenty-five (25) percent. In compliance with this order, Mr. Reginella decided to eliminate two of the six project architects and requested a seniority roster from the Personnel Department (Personnel) to determine which architects had the least seniority.

In calculating the seniority of all the project architects, Personnel Administrator, Jody Reinsel, gave each employee credit toward his or her total seniority by including all time that the employee spent in a full time position with benefits in any department of the City. This method of calculating seniority is called "bridging" previous service. Ms. Reinsel testified that the City has used this method of calculating seniority for the past seven years that she has been employed in Personnel. As a result of this seniority calculation, Ms. Reinsel found that Claimant and Casimir Pelligrini were the two least senior employees. Based on Ms. Reinsel's findings, the Department Director, Mr. Reginella, laid off those two project architects.

Kevin Silson was a project architect within the Department who was not laid off based on Ms. Reinsel's seniority calculation. Silson worked for the City's Department of Parks and Recreation from August, 1974 to September, 1980. In May, 1991, Silson began his current employment with the City. Mr. Silson would have less seniority than Claimant if the City did not bridge his time for purposes of calculating seniority. Claimant challenged the manner in which seniority was calculated and appealed his termination to the Commission which denied his appeal. Claimant appealed to the trial court which reversed.

The City raises the following issues here on appeal: (1) whether the trial court erred by admitting additional documentary evidence, in the form of affidavits, when it was primarily relying on the record from below without conducting a de novo hearing; and (2) whether the City's method of calculating employee seniority for purposes of economic layoffs is legally permissible.

Our review, when a trial court has limited itself to the record before the Commission, is limited to determining whether the Commission's order violated the employee's constitutional rights, whether the Commission manifestly abused its discretion, committed an error of law, or whether the Commission's decision was supported by substantial evidence. Sammons v. Civil Service Commission of Philadelphia, 673 A.2d 998, 1001 n.5 (Pa. Commw. 1996), petition for allowance of appeal granted, 546 Pa. 651, 683 A.2d 887 (1996). *fn1

I

The City argues that the trial court erred by allowing discovery and by accepting affidavits from individuals who did not testify before the Commission because the trial court made no finding that the record certified from the Commission was incomplete. The City maintains that, when a court of common pleas sits as an appellate court to review the decision of a local agency, it can only hear the appeal on the record certified by the agency in accordance with Section 754(b) of the Local Agency Law. *fn2 Once the trial court decided not to hold a de novo hearing, it could not base its reversal of the Commission's decision on affidavits which were not part of the record below because the City had no opportunity to cross-examine the affiants or ascertain the authenticity of the documents submitted to the court. *fn3

This court has defined a de novo hearing as "'a new hearing or hearing for the second time, contemplating an entire trial in [the] same manner in which [the] matter was originally heard and a review of previous hearings.'" Pendergast v. City of Hazleton, 102 Pa. Commw. 556, 519 A.2d 540, 542 (Pa. Commw. 1986) (alterations in original) (quoting Blacks Law Dictionary, 649 (5th ed. 1979)). In order for proceedings before a trial court to be de novo, under this definition, the trial court must conduct proceedings with the attributes of the fact finding process, for example, the admission of documentary and testimonial evidence, conducting direct and cross-examination, and making credibility determinations, and must conduct a review of the adjudicatory process below. In the instant case, although the trial court reviewed the action taken by the Commission, it did not conduct a hearing in the same manner as originally heard. The trial court, therefore, erroneously admitted additional evidence because it did not conduct de novo review.

The trial court, however, did not base its decision on new findings of fact, stating that it "accepted this case on briefs of counsel and the record." (trial court opinion at 1). Nowhere in the record, as certified from the Commission, is there evidence that Silson was properly reinstated. *fn4 Also, there is no evidence in the record of a written policy, rule, or ordinance properly promulgated or otherwise published by the Commission or the City government which permits City officials to bridge the service time of a City employee who previously served the City and who was not properly reinstated. The lack of such a document in the record served as the basis for the trial court's decision. After reviewing the facts as they existed in the certified record, ...


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