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August 14, 1997


Before: Honorable James Gardner Colins, President Judge, Honorable Rochelle S. Friedman, Judge, Honorable Charles A. Lord, Senior Judge. Opinion BY Judge Friedman.

The opinion of the court was delivered by: Friedman



FILED: August 14, 1997

Before this court are preliminary objections to the Amended Petition for Review filed by the Pennsylvania Social Services Union (Union), wherein the Union seeks declaratory, mandamus and injunctive relief against the Pennsylvania Department of Public Welfare (DPW), the Office of the Inspector General (OIG) and the State Civil Service Commission (Commission) (collectively, Respondents) in connection with the transfer of welfare fraud control responsibility from DPW to the OIG and the resulting loss of civil service classification for the transferred positions.

In July 1994, the Casey administration transferred responsibility for welfare fraud investigation and control from DPW, the state agency charged with administration of the federally-funded Aid to Families with Dependent Children (AFDC), Medicaid and Food Stamp programs, to the OIG. Consequently, at the same time, many of the claims investigation agents and claims investigation agent supervisors of DPW's Office of Fraud and Abuse Investigation and Recovery who were responsible for handling welfare fraud investigations for these federal programs were transferred to the OIG. Prior to the transfer, all claims investigation agents and supervisors held classified service positions. *fn1 Although OIG employees are not within the classified service, the OIG determined that all transferred claims investigation employees would retain civil service status. However, new hirees for claims investigation positions (new positions created within the OIG and transferred positions vacated after the transfer) would not receive classified status; the status of transferred employees who received promotions would be determined by the status of the new or vacant position.

The Union objected to the OIG's determination that new or prospective hirees would not be accorded civil service status. By letter dated July 22, 1994, the Union asserted to the Commission that all claims investigation positions should carry the same classified status and asked the Commission to investigate and take appropriate action. By letter dated January 11, 1995, the Commission responded, advising the Union that nothing in the Civil Service Act (Act), 71 P.S. §§ 741.1 - 741.1005, requires that OIG employees be included within the classified service.

The Union filed the present action on February 15, 1995 in both our original and appellate jurisdiction. However, by order dated October 17, 1996, this court dismissed with prejudice those claims brought by the Union under our appellate jurisdiction, including the Union's appeal from the Commission's January 11, 1995 letter. We also dismissed the Union's claims brought under our original jurisdiction, but granted the Union leave to amend its petition. Accordingly, the Union filed an Amended Petition for Review addressed only to this court's original jurisdiction, in response to which Respondents have filed preliminary objections. *fn2

Because standing is an essential element of justiciability, we will first address DPW and the OIG's objection that the Union's Amended Petition must be dismissed in its entirety because the Union lacks standing to bring this suit on its own behalf or on behalf of its members.

It is well settled that an association, as a representative of its members, may have standing to bring a cause of action even in the absence of injury to itself. Pennsylvania Gamefowl Breeders Association v. Commonwealth, 533 A.2d 838 (Pa. Commw. 1987), reaff'd after reconsideration, 538 A.2d 645 (Pa. Commw. 1988). In order to have standing, the association must allege that at least one of its members is suffering immediate or threatened injury as a result of the challenged action. Id. Moreover, the member of that association who is threatened with injury must have an interest in the litigation that is substantial, direct and immediate. Pennsylvania Academy of Chiropractic Physicians v. Department of State, Bureau of Professional & Occupational Affairs, 129 Pa. Commw. 12, 564 A.2d 551 (Pa. Commw. 1989). As explained by the Pennsylvania Supreme Court in William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975), an interest is "substantial" when there is a discernable adverse effect to an interest of the aggrieved individual which differs from the abstract interest of the general citizenry in having others comply with the law. An interest is "direct" when an aggrieved person can show a causal connection between the alleged harm to his or her interest and the matter of which he or she complains. Id. Finally, the interest is "immediate" when the causal connection between the injury and the matter complained of is not too remote. Id.

Here, in its Amended Petition, the Union alleges that its members, claims investigation agents and supervisors, are threatened with injury by the OIG's determination that new or prospective hirees for claims investigation positions would not receive classified status. Specifically, the Union alleges that the OIG's actions adversely affect its members in the following manner: (1) claims investigation agents and supervisors who had retained their civil service status when transferred from DPW will lose the protection of the Act if they are promoted or transferred to non-civil service vacancies within the OIG; and (2) claims investigation agents and supervisors hired by the OIG after July 1, 1994 are denied classified service status, thereby losing the "valuable rights and protections" provided by the Act. (Amended Petition for Review at 10-11.)

As individuals whose employment rights and benefits are adversely affected by the OIG determination, claims investigation agents and supervisors who belong to the Union have a substantial interest that clearly differs from the population at large. Moreover, the substantial interest of those individuals in preventing denial of their rights under the Act is direct because it is causally connected to the alleged adverse effect that Respondents' actions will have on the employment interests and security of the Union's members. Because this causal connection is not too remote, the Union's interest in preserving the civil service status of its members is also "immediate" for purposes of standing. Accordingly, we deny DPW and the OIG's preliminary objection with respect to the Union's standing to maintain the current cause of action on behalf of its members.

We will next address Respondents' preliminary objections to each of the four counts of the Union's Amended Petition for Review. *fn3


In Count I of its Amended Petition, the Union alleges that the Commonwealth of Pennsylvania, as a condition of participation in the AFDC, Medicaid and Food Stamp programs, must establish a plan to administer these programs which includes "the establishment and maintenance of personnel standards on a merit basis." (Amended Petition for Review at 15 (citing 42 U.S.C. § 602(a)(5); 42 U.S.C. § 1396(a)(4); 7 U.S.C. § 2020(e)(6)(B); 42 U.S.C. § 4701; 5 C.F.R. § 900.601).) Because claims investigation agent and supervisory positions are funded by these federal programs, the Union maintains that all such positions, whether located within DPW or the OIG, must be covered by a merit system such as the classified ...

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