521 A.2d 80 | Pa. Commw. Ct. | 1987
Opinion by
The Civil Service Commission of the City of Philadelphia appeals to this Court the order of the Philadelphia County Court of Common Pleas granting the appeal of William K. Wenitsky.
Wenitsky, injured on July 14, 1977 and serving thereafter only intermittently as a police officer for the City of Philadelphia, was ordered on August 4, 1980 to return to full-time active duty. Wenitsky then filed an appeal to the Civil Service Commission under Civil Service Regulation 32 which permits an employee who
Wenitskys appeal to the common pleas court remained inactive until January 18, 1983 when the court ordered Wenitsky to file a brief in support of his appeal. Wenitsky filed his brief on February 18, 1983. The Commission filed its reply brief on March 11, 1983 and, in it, argued that Wenitskys Regulation 32 appeal was moot as Wenitsky had been discharged. The Commission asserted in its brief that, because Wenitsky had failed to report for active duty after his Regulation 32 appeal had been denied, the police department removed Wenitsky from his employment pursuant to Civil Service Regulation 22.01 which provides that an employee who is absent from work without a valid leave of absence for five consecutive working days shall be deemed to have abandoned his position unless he shall within a specified time frame prove that his failure was excusable.
The common pleas court then, on April 7, 1983, remanded the case to the Civil Service Commission to allow the City’s Personnel Director to determine whether Wenitskys forced separation from employment was in error. Apparently, there was no further activity with regard to this matter in the common pleas court until October 3, 1985 when Wenitsky filed a supplemental brief in which he asserted that the Personnel Director
The Commission chose not to file a reply brief to the supplemental brief and indicated that fact in a letter dated November 7, 1985 to the prothonotarys office in the common pleas court. On November 14, 1985, the common pleas court signed Wenitskys proposed order granting his disability appeal which had been stamped “uncontested.” The Commission appealed and, in an opinion dated December 31, 1985, the court stated that Wenitskys supplemental brief “raising new issues” had not been answered by the Commission and that, consequently, Wenitskys proposed order was signed as uncontested. This appeal followed.
The Commission, citing Section 754(b) of the Local Agency Law, 2 Pa. C. S. §754(b), argues that its decision regarding the Regulation 32 appeal must be upheld as the substantial evidence of record supports that decision.
The Commission was under no obligation to file a reply brief to Wenitskys supplemental brief. It could choose not to file another reply brief, and it conceded nothing by so choosing. Wenitsky had an affirmative duty to prosecute the appeal he filed, and even a total failure by the Commission to file any brief would not eliminate that burden. See Civil Service Commission of the City of Philadelphia v. Farrell, 99 Pa. Commonwealth Ct. 631, 513 A.2d 1123 (1986). See also Civil Service Commission v. Althea E. Rogers, 103 Pa. Commonwealth Ct. 636, 520 A.2d 1264 (1987).
The common pleas court must review the record developed before the Commission, apply the scope of review set forth above, and issue a decision on the disability appeal which includes a discussion of the Commissions findings of fact and conclusions of law. Accordingly, this matter will be remanded to the common pleas court for a decision on the merits.
Order
And Now, this 17th day of February, 1987, the order of the Philadelphia County Court of Common Pleas is vacated and the matter is remanded for proceedings consistent with this opinion.
Jurisdiction relinquished.