Sterling v. Com., Dept. of Environmental Resources
| Decision Date | 30 December 1983 |
| Docket Number | 21 M.D. 1983. |
| Citation | 504 Pa. 7,470 A.2d 101 |
| Parties | George R. STERLING, Appellant, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF ENVIRONMENTAL RESOURCES, and State Civil Service Commission, Appellees. |
| Court | Pennsylvania Supreme Court |
Argued Oct. 24, 1983.
Steven L. Friedman, Philadelphia, John L. Heaton Harrisburg, for appellant.
Marybeth A. Stanton, Deputy Atty. Gen., for appellee.
Before ROBERTS, C.J., and NIX, LARSEN, FLAHERTY, McDERMOTT HUTCHINSON and ZAPPALA, JJ.
The Court being equally divided, the Order of the Commonwealth Court is affirmed.
NIX, J., did not participate in the consideration or decision of this case.
ZAPPALA, J files an opinion in support of affirmance. ROBERTS, C.J., and McDERMOTT, J., join.
LARSEN, J., filed an opinion in support of reversal.
HUTCHINSON, J., filed an opinion in support of reversal in which FLAHERTY, J., joined.
Appellant George Sterling has filed a notice of appeal from the Commonwealth Court's order of March 14, 1983 which was entered in his mandamus action against the Department of Environmental Resources ("DER") and the State Civil Service Commission ("Commission"). That court denied Appellant's motion for summary judgment and granted the Appellees' motion for summary judgment.
The record facts indicate that the Appellant, an employee with DER's Bureau of Mining and Regulation, received a letter dated July 12, 1982 from the Secretary of Environmental Resources informing him of an impending reduction in his compensation as a manager of two pay steps within the same position due to deficiencies in his job performance. DER advised him that the action was taken in accordance with 4 Pa.Code § 99.31, which provides in part that "[a]n appointing authority may reduce the salary of an employee on account of unsatisfactory performance of duties, or for disciplinary reasons to a lower salary rate within the salary range prescribed for his position."
Following his request for a hearing on the disciplinary action under §§ 951(a) and (b) of the Civil Service Act, Act of August 5, 1941, P.L. 752, as amended, 71 P.S. §§ 741.1 et seq., Appellant was denied a hearing under § 951(a), but was granted a hearing under § 951(b) [1] .
Appellant then filed a petition for review, in the nature of mandamus, in Commonwealth Court, seeking an order either enjoining DER's action or directing the Commission to provide him with a hearing pursuant to § 951(a) of the Act in addition to the hearing available under § 951(b) [2] . Upon consideration of the motions filed, the Commonwealth Court concluded the action taken by DER was not a "demotion" as defined by the Act which would trigger the right to a hearing under § 951(a) and further determined the appeal rights available to Appellant are those set forth in § 951(b).
Sterling has filed a direct appeal from the summary judgment purportedly under § 723(a) of the Judicial Code, 42 Pa.C.S.A. § 723(a), being therefore construed as an appeal from a final order of the Commonwealth Court. As we stated recently in O'Brien v. Commonwealth of Pennsylvania State Employes' Retirement System, 503 Pa. 414, 469 A.2d 1008 (1983):
"... an action to compel an administrative agency which has finally denied a request for a hearing to hold one is, as a matter of statutory interpretation, addressed to the appellate jurisdiction of the Commonwealth Court under § 763 of the Judicial Code, not an action 'originally' commenced in Commonwealth Court as required by § 723(a) governing direct appeals to this Court as of right."
Although we find that review of the Commission's refusal to grant Sterling a hearing under § 951(a) of the Act was properly within the appellate jurisdiction of the Commonwealth Court, rather than its original jurisdiction, and that no right to a direct appeal to this Court exists, we will treat Appellant's appeal as an appeal by allowance. See Pennsylvania Department of Aging v. Lindberg, 503 Pa. 423, 469 A.2d 1012 (1983). We now affirm the Commonwealth Court.
The issues presented by Sterling's appeal are (1) whether DER exceeded its authority in reducing Appellant's compensation for the performance of his duties as a mining district manager, and (2) whether the Commission has a duty to provide a civil service employee with a hearing on personnel actions taken by an appointing authority under facts such as those herein asserted.
We must reject Sterling's contention that DER's disciplinary action exceeded its authority under the Act. Appellant concedes that DER has the power to demote an employee to a lower class with a right to a hearing, but argues that DER lacks the authority to "demote" an employee within the same class without the right to a hearing. We note initially that Appellant's argument is based upon a faulty premise, i.e., that every disciplinary action resulting in a reduction of an employee's compensation is a demotion. "Demotion" as used in this Act [3] is unambiguously defined as "... a change [in status] to a position in a class carrying a lower maximum salary". This clearly does not encompass the disciplinary action undertaken by DER. Thus, we need not resort to principles of statutory construction, as urged by Appellant, in interpreting the plain language of this provision of the Act.
Appellant further challenges DER's action as violative of § 706 of the Act. Section 706 provides in part:
"An appointing authority may demote to a vacant position in a lower class any employe in the classified service who does not satisfactorily perform the duties of the position to which he was appointed or promoted and who is able to perform the duties of the lower class."
Appellant argues, without justification, that DER's action exceeded its authority because § 706 authorizes demotions to a lower class, but not demotions within the same class. "Demotion" is narrowly defined, however, as a change to a position in a class carrying a lower maximum salary and does not refer simply to a change within the same class or to a lower class.
The use of this form of personnel action to regulate the conduct of employees does not conflict with the purpose for which the Act was intended--i.e. greater efficiency and economy in the administration of the government. See 71 P.S. § 741.2. Recognizing that continued government service by a competent employee is consistent with the Act's purpose, the Legislature sought to restrict the latitude of an agency's power to dismiss an employee. The Legislature did not intend, however, to unduly restrict an agency's managerial or supervisory actions, including disciplinary measures, reasonably designed to control an employee's performance of his duties.
Administrative and judicial inquiry of the magnitude which is being sought herein would be disruptive and effectively destroy the very purposes of the Act--the need for continuity in government service. [4]
Thus, determining DER's action was not a "demotion" under the Act, we therefore conclude that the Appellant had no right to a hearing under § 951(a). The Appellant next argues that the Commission's refusal to grant a hearing under § 951(a) is a violation of the due process clause of the Fourteenth Amendment or of the Pennsylvania Constitution. We find no merit in such an assertion.
As we stated in Scott v. Philadelphia Parking Authority, 402 Pa. 151, 166 A.2d 278 (1960), an appointed public employee's right to tenure in public employment exists as a matter of legislative grace. No property interest in government employment exists per se which makes denial of a right of appeal a violation of due process, Kelly v. Jones, 419 Pa. 305, 214 A.2d 345 (1965); accordingly, the scope of an employee's right to appeal actions of his employer is circumscribed by the Act which has created it.
An employee's rights to a hearing are set forth in §§ 951(a) and (b) of the Act. Section 951(a) provides for administrative review by public hearing for a permanent separation, suspension for cause, furlough or demotion on the ground that such action was taken in violation of provisions of the Act. Section 951(b) provides review by a hearing for any person aggrieved by an alleged violation of § 905.1 of the Act relating to discrimination in personnel action for enumerated reasons, including "non-merit factors". Because DER's action was not a demotion, § 951(a) is inapplicable, and the Commission's denial of a hearing under that section is not a violation of due process.
OPINION IN SUPPORT OF REVERSAL
I agree that appellant's notice of appeal should be treated as a petition for allowance of appeal, and that the petition for allowance of appeal should be granted so that we may rule on the merits of this case. I cannot agree with the disposition on the merits, however, and I therefore express my opinion in support of reversal.
Like the opinion in support of affirmance, I would hold that the action taken by DER with respect to appellant did not constitute a demotion within the meaning of the Civil Service Act, 71 P.S. § 741.3(16)(r). [1] The opinion in support of affirmance has erred, however, in concluding that simply because appellant did not suffer a demotion, he is not entitled to relief.
First, I think that both the action of DER and the regulation upon which it relied in this case were invalid. "[A]n administrative agency can only exercise those powers which have been conferred upon it by the Legislature in clear and unmistakable language." Human Relations Commission v. Transit Casualty Insurance Company, 478 Pa. 430, 438, 387 A.2d 58, 62 (1978). The Civil Service Act grants neither DER nor the ...
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