Elias v. Com., Dept. of Public Welfare, Polk Center

• Decision Date: 17 June 1986
• Citation: 511 A.2d 887,98 Pa.Cmwlth. 218
• Parties: Selim A. ELIAS, M.D., Petitioner, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF PUBLIC WELFARE, POLK CENTER, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 887

511 A.2d 887

98 Pa.Cmwlth. 218

Selim A. ELIAS, M.D., Petitioner, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF PUBLIC WELFARE POLK CENTER, Respondent.

Commonwealth Court of Pennsylvania.

Argued March 11, 1986.

Decided June 17, 1986.

Barbara L. Smith, Mahany, Roeder & Smith, Titusville, for petitioner.

James A. Marshall, Harrisburg, for respondent.

Before MacPHAIL, DOYLE and BARRY, JJ.

DOYLE, Judge.

This is an appeal by the estate of Selim Elias, M.D., from a determination of the State Civil Service Commission (Commission) denying Dr. Elias an award of backpay for anticipated overtime and approving the action of the Department of Public Welfare (Appointing Authority) in offsetting from Dr. Elias' backpay the sum of $11,645.34 which sum Dr. Elias had earned from other employment during the period of his removal from public service. The estate also seeks interest for the period from the doctor's removal until the date of payment of the award. This case has had a tortuous procedural history but a basic understanding of the prior proceedings is necessary.

The Appointing Authority removed Dr. Elias from his position as a Physician II at Polk Center on October 3, 1978. Dr. Elias appealed this action to the Commission which sustained the appeal, reinstated Dr. Elias as of October 23, 1979, but declined to award backpay. Dr. Elias then filed a motion for reconsideration before the Commission requesting an award of backpay. The Commission denied the request and appeal to this Court followed. In Elias v. Department of Public Welfare, Polk Center, 57 Pa. Commonwealth Ct. 503, 426 A.2d 762 (1981) (Elias I), we remanded the matter to the Commission for specific findings of fact on the denial of backpay. Upon remand the Commission issued a supplemental adjudication and order again denying backpay. Dr. Elias again appealed to this Court which in Elias v. Department of Public Welfare, Polk Center, 70 Pa. Commonwealth Ct. 255, 452 A.2d 1127 (1982) (Elias II), reversed the Commission's order and awarded backpay "for the period of [Dr. Elias'] improper dismissal from employment commencing October 23, 1978, less appropriate deductions." ¹ The Court thus remanded the matter to the Commission again for a computation of the backpay. The Commission then, without conducting additional hearings or making additional findings, issued an order directing the Appointing Authority to pay Dr. Elias "any loss of wages or emoluments suffered during the period of October 3, 1978 to the date of his reinstatement, less any wages earned or benefits received under the Public Laws of Pennsylvania as established by a sworn statement to be submitted by [Dr. Elias.]" The Commission's power to enter this order emanates from Section 951(a) of the Civil Service Act (Act), ² 71 P.S. § 741.951(a).

At some point prior to January 21, 1983 Dr. Elias died. But on that date his wife and personal representative filed an affidavit claiming that under the Commission's order the estate was entitled to $48,534.40. The Appointing Authority maintains that it is liable to the estate for only $28,235.56. In April of 1983 the estate filed a petition with the Commission seeking enforcement of its order. In May of 1983 the Appointing Authority responded to the petition setting forth its position that it had complied with the order. The Commission approved the figure arrived at by the Appointing Authority and this appeal followed.

In order to understand the dispute in the amount owed it is necessary to examine the Commission's order as well as the breakdown of figures which the estate claims should be used and the breakdown actually employed by the Appointing Authority. Under the estate's theory Dr. Elias is entitled to $48,534.40 based upon the following calculations. From January 1, 1978 until the date of his removal on October 3, 1978, a period of 276 days, Dr. Elias actually earned $36,087.21; this figure includes overtime. The estate therefore divided the $36,087.21 by 276 and arrived at per diem earnings of $130.75. The doctor remained removed for 385 days and hence the $130.75 figure was multiplied by 385 for a total of $50,338.75. As of July 1, 1979, Dr. Elias, had he been employed, would have received a raise of $5.30 per day. This raise would have applied to the 119 days he remained removed in 1979. Thus, the estate multiplied $5.30 times 119 days and arrived at a figure of $604.20 which it added to the $50,338.75 for a total of $50,942.95. The estate then considered $11,645.34 which Dr. Elias earned through "alternate employment." It offset this amount by a loss of $9,236.79 which the doctor sustained when he had to close his private practice, allegedly because of his unwarranted dismissal, and arrived at a figure of $2,408.55 which it then deducted from the $50,942.95 for a final total of $48,534.40 to which it now claims entitlement. The estate's computation is summarized as follows:

                  Income Based on 1978 Wages
                  ($130.75/day x 385 days)                $ 50,338.75
                  July 1, 1979 raise
                  ($5.30/day x 119 days)                   $   604.20
                                                          ------------
                  Income the doctor should have earned--
                  October 3, 1978 to October 23, 1979                   $50,942.95
                  Income earned through
                  alternate employment                    $ 11,645.34
                  Loss incurred through
                    loss of private practice               ($9,236.79)
                                                          ------------
                Income actually earned--
                  October 3, 1978 to October 23, 1979                   $ 2,408.55
                Back pay less appropriate deductions                    $48,534.40
                

(Affidavit of the estate dated January 21, 1983).

The Appointing Authority, in its computations, however, used much different figures. It began by awarding the doctor his salary of $37,098.30. ³ This figure does not include overtime. It then added $2,297.70 as the annual leave payout for the period of the removal, $207.40 of annual leave adjustment, and $277.50 of personal leave, for a total of $39.880.90. Next, the Appointing Authority deducted the entire $11,645.34 of income earned by the doctor in his alternate employment (without allowing for losses incurred in his private practice) and, accordingly, arrived at a final figure of $28,235.56. The summary of these calculations is as follows:

When the estate appealed the Appointing Authority's determination, the Commission embraced it as correct, rejected the estate's computation, and in its letter advice to the estate in the answer to the petition for enforcement specifically stated that because overtime pay is speculative only it can not properly be awarded as part of backpay. The Commission also wrote:

As for any losses incurred through the loss of [the doctor's] private practice, the Commission specifically declines to include such amounts as part of the total computation. It is our opinion, and you [i.e., the estate] are hereby advised, that the amount of wages due under the Commission's Order is limited to the official salary and normal emoluments applicable during the period in question.

Thus, the dispute centers principally upon whether anticipated overtime is properly included within the Commission's and this Court's orders pertaining to backpay and whether the monies earned from alternate employment are properly offset, in whole or in part, from the doctor's salary.

Considering first the question of overtime, we are of the view that the Commission was in error in declaring that as a matter of law anticipated overtime wages are too speculative to permit recovery. By analogy to contract actions, the law provides that damages must be proved with reasonable certainty, Wilcox v. Regester, 417 Pa. 475, 207 A.2d 817 (1965), and where there is a basis in the evidence from which a reasonable computation of damages may be arrived at, an award of damages may be based on this evidence even though there may be some uncertainty as to the amount of the damages. Solar Electric Corp. v. Exterminator Corp. of America, 384 Pa. 233, 120 A.2d 533 (1956). Succinctly put, the law in allowing damages for breach of contract requires only reasonable certainty, as distinguished from absolute certainty on the one hand and mere conjecture on the other hand. Rothrauff v. Sinking Spring Water Co., 339 Pa. 129, 14 A.2d 87 (1940). The Appointing Authority cites Pennsylvania Board of Probation and Parole v. Baker, 82 Pa. Commonwealth Ct. 86, 474 A.2d 415 (1984) wherein we held that the Commission's power to make an appropriate order under Section 951(b) of the Act, ⁴ 71 P.S. § 741.951(b), is restricted to assuring that the employee receives the rights accorded to him by the statute. Taking the position that an employee has no statutory right to work overtime, the Appointing Authority thus argues by analogy to Baker that an award of backpay including anticipated overtime is not authorized under Section 951(a). We cannot agree. While we acknowledge that one does not have the right to work overtime at any given point in time at his own choosing, each employee does have the right to be considered for overtime employment in his turn when it is offered or demanded by the employer, subject of course to collective bargaining provisions. It is obvious that during the period of his removal the doctor lost that right. If he can demonstrate, based on past statistics, that he had actually taken advantage of that right, then in our view there is a sufficient basis to allow the award of overtime pay as part of his "salary or wages" under Section 951(a) of the Act.

The evidence upon which the amount of overtime is premised appears in the doctor's federal tax forms. For the tax year 1977 the doctor received gross wages of $41,516.94 from the Appointing Authority. Since this was for a full year an average per diem calculation could be made as follows: $41,516.94 divided by 365 equals $113.75 per day. For the tax year 1978 the doctor received $36,087 in...