*1 ORDER Em- of the State NOW, the order December 011-28-2749, Board, dated Au- file No. Retirement ployes’ reversed, the case is remanded gust is amount of nonstate purpose computing for the board eligible purchase. petitioner credit service relinquished. Jurisdiction

600 A.2d DEPARTMENT OF ENVIRONMENTAL Petitioner,

RESOURCES, v. GALANT,

Joseph Respondent. P. Pennsylvania. Court of Commonwealth Argued Nov. 1990.

Decided Dec.

Reargument Denied Jan. *2 Counsel, Bair, petitioner. H. Asst. Patrick Casper, respondent. R. Edgar KELLEY, J., and CRAIG, Judge, President Before BARBIERI, Judge. Senior

BARBIERI, Judge. Senior (DER) peti- Resources of Environmental Department an order of the State Civil tions this Court to review (Commission) appeal sustained regular as a sanitarian P. from his removal Joseph Galant DER. We reverse.1 supervisor with in DER’s supervisor as a sanitarian employed Galant was letter By Control. Community Bureau of Environmental he notified that was dated Galant was November *3 the close of his effective at being position, removed from following reasons: on for business November Supervisor, As a Field absent without 1. [he] [was] on numerous duty assignment leave from approved [his] occasions, June, 1988. February, 1986 and between telephones and Com- 2. used Commonwealth [his] [He] personal card for telephone monwealth issued credit in to the private resulting improper business calls Commonwealth. insurance, to sell life deferred com attempted

3. [He] representatives among and recruit sales pensation plans, hours.[2] during working employes Commonwealth appealed pur his removal the Commission Galant Act, 951(a) Act of suant to Section of the Civil Service September reassigned opinion on This case was writer 1. permission part- had for to act as a In October Galant agent employment with time insurance in addition to his DER. long granted permission as Galant did not Commonwealth such as hours; (a) (b) working during at Commonwealth solicit his insurance officer, facilities; (c) entity any agent, employee with or or of apy by any entity regulated his Bureau. amended, 71 P.S. 741.951(a).3 as 5,1941, August P.L. § that, concluded based hearing, After a the Commission DER had failed to establish presented, the evidence the Commission Accordingly, for removal. cause4 his and reim- position reinstated to ordered that Galant be petition This days pay.5 for all back thirty bursed but followed.6 review findings the record and DER contends charges against as support DER’s Commission, letter, as a matter in contained its removal removal. As law, to sustain Galant’s duty-bound was v. Hous DER cited position, for its authority Lebanon, 58 Pa.Common ing Authority County of 494, 428 A.2d 274 Ct. wealth Omelchenko, the Commission’s order In we reversed disciplinary action be- Housing Authority’s modifying Author- findings supported the cause the Commission’s own Commission, there that the It was clear to us ity’s charges. 951(a) provided pertinent appeal, Section 3. At the time of Galant’s part: (a) may, Any regular employe within in the classified service receipt twenty days of of notice from the calendar writing Any permanent authority, appeal the commission. cause, furlough separation, suspension or demotion on the in violation of grounds such has been taken in this case act, receipt appeal, provisions upon of such notice of of this public hearing____ promptly a shall schedule and hold commission omitted]. [Footnote 951(a) of the Act of June was later amended Section 20 Section 741.951(a). (Act 10), P.S. The Commission noted § P.L. adjudica- in its opinion that all references to the Civil Act its prior stood to the enactment of Act 10. tion addressed the Act it *4 Act, According Civil 71 P.S. 741.807: § to Section 807 of the Service regular employe service shall be removed in the classified No except cause. thirty days pay from the award of back 5. The Commission withheld entirely without fault with pay it found that Galant was not charges lodged. respect to the cases, scope limited to a determina- service our of review is In civil violated, rights error of law an tion of whether constitutional committed, by necessary findings unsupported of fact were or was Commission, Civil Service 98 Pa.Com- evidence. Ross v. substantial 565, (1986). monwealth Ct. 511 A.2d 941

89 substituted imposed, disciplinary in the modifying held, This, it could we authority. appointing itself for the not do. in this Court espoused by general principle stated follows: concisely was the relate to a removal based charges

If the if the employee’s performance the work merits of findings, own the Commission’s supported by are charges authority’s uphold appointing must the the Commission out, if are not made Only action. disciplinary authority’s appointing may modify the Commission or without employee back reinstating action by —with pay.

Id., 497, 428 A.2d at 275-276.7 Ct. at 58 Pa.Commonwealth case, the evi-

In the the Commission evaluated present first respect With presented by parties. dence both leave on alleged approved absence without charge, Galant’s occasions, found on the two numerous he investigator, days being by Galant was observed note, passing, had Galant’s removal occurred after the 7. We that 10, holding have our effective date of Act we would not facts, Act, 952(c) Civil Omelchenko to the since Section of the 10, has, 741.952(c), which was added Section 21 of Act 71 P.S. § purposes, holding. Pennsylvania See all intents and invalidated Flannery, Liquor Pa.Commonwealth Ct. 595 Control Board v. 952(c) provides: Act A.2d 685 Section of the Civil Service removed, (c) furloughed, any employe suspended, or In case of demoted, may modify the commission or set aside the action of the authority. appropriate, may Where the commission reinstatement, salary payment order with the of so much lost, benefits, may including employe wages as the commission its discretion award. 952(c) connotes a substantive Because we believe that Section Act, merely procedural change in the Civil Service rather than a gives power grant remedy change, a in that it unavailable, prior previously and because Galant’s removal occurred 952(c) Act the enactment of Section does to the effective date cf generally Nationwide Insurance not affect our review of this case. See Board, Compensation Appeal Company Pa.Common v. Workmen’s (a (1975) petitioner’s A.2d 757 n. 2 wealth Ct. 245 n. rights with the statute must be determined in accordance substantive such, injury). holding As our in Omelchen in effect at the time of his and, therefore, controlling binding precedent in the case at bar. ko is *5 failed to slips period submit leave for a forty-six about on minutes the first and for day fifty-six minutes on the asserted, second As for the day.8 other absences the Com- (1) mission found evidence credible established that had department reports worked on at home and that no presented evidence was to that he establish either failed actually perform to work otherwise acted a man- status; (2) ner inconsistent an with “at work” that DER had failed to demonstrate that Galant’s few extended lunch hours worthy constituted an abuse discipline; severe and (3) charge that DER’s that Galant was absent without leave forty at least occasions was unsubstantiated evidence on record. respect charge,

With to the second alleged Galant’s use of Commonwealth and his telephones Commonwealth tele- . phone credit card for personal private calls, business that, the Commission hearing, noted at Galant had admitted that he used the Commonwealth telephones and credit regarding card calls his insurance during business work hours.9 respect

With charge, alleged third at- tempts to sell life compensation insurance and deferred plans and to recruit sales representatives among Common- during hours, wealth employees working that, found from the testimony presented, Galant’s conver- sations with his co-workers were simply elicitation of an occasion, expression however, interest. On one the Com- mission questionable found that Galant acted in a manner by soliciting a co-worker. opinion type It was the discipli- Commission’s while some nary may appropriate apparently have been since Galant failed time, slips to submit leave for this these two incidents did not warrant his removal. so, Even the Commission found that the evidence demonstrated that violator, Galant was not a chronic that his calls amounted $17.32 period year, over a of one and that Galant had reimbursed such, expenses Commonwealth he incurred. As the Commis- significant enough sion concluded that Galant’s conduct was not warrant his removal. evidence, appears it our From review .10 charges DER’s findings support the Commission’s

though *6 things charged by done the found that Galant had Having simply to decide whether duty was DER, the Commission’s cause for just matters which charges the described removal. Section 807 Civil

It is under undisputed Act, must merit-related. just cause be Service removal out the action' carried any 'personnel means that This of light scrutinized the such Commonwealth is to be criteria, execute properly the failed to party as has merit hampers or duties, or he an act which his has done of same. The criteria must be the execution frustrates logical manner touch and in some rational and job-related upon ability. and competency Commission, 2 Pa.Commonwealth v. Civil Corder (1971). Ct. 279 A.2d 371 against clearly relate to Here, charges DER’s his He not have been of duties. could performance Galant’s when he was supervisor his duties as a executing properly personal the with busi telephone from the job, absent Moreover, representative as a ness, soliciting insurance. management’s policies on management must enforce who expected to ad strictly Galant was employes, lower-level De Woodbridge here such See v. to standards himself. Revenue, Ct. Pa.Commonwealth partment of reasons, that DER’s these we hold A.2d 300 For and touch job performance relate to Galant’s charges his and logical upon competency rational and manner some ability. removal, cause

Because there was power, did not have the under adjudication that Galant was Commission even admits in its though respect charges lodged. Even not without fault with aspects enough support all evidence Commission did not find charge charges, it occurred. did find that infractions each DER’s Omelchenko, action, to alter DER’s disciplinary we must reverse the Commission’s decision.11

ORDER NOW, December, 1991, AND this 6th day adjudica- tion of the State Civil Service Commission the above- captioned proceeding hereby reversed.

KELLEY, Judge, dissenting.

I dissent on respectfully separate two bases. Assuming that the standard if applies, only appointing are not authority’s made out may modify authority’s action. *7 The notes that DER’s majority charge that Galant was absent without leave on at least forty occasions was unsub- by stantiated the evidence on record. alleged DER also before the Commission that had Galant dis- improperly cussed life insurance during working with five workers hours. The Commission found that only improper one discussion occurred. It is clear that the Commission did not accept was, all of the charges by therefore, made DER. It proper for the to Commission DER’s action under modify Omelchenko.

The in majority, concluding that the charges proven, were looks general charges contained in the termination letter. example, For the concludes majority charge that the insurance, that “attempted to sell life com- deferred pensation plans, and recruit representatives sales among Commonwealth employes during working hours” was prov- en because of the Commission’s finding that Galant acted improperly discussing insurance at work on one of five alleged occasions. I it is gener- believe incorrect to use the charge al the termination letter charge as the which must proven be order to satisfy Omelchenko. DER’s action in terminating Galant was on the specific charges based made determination, Having unnecessary made this it is for us to address DER’s second contention. does not Commission, and if the Commission the

before the Commis- charges proven, that all these conclude to DER’s action. modify permitted should be sion belief that my my dissent The second basis In fn. case. apply not in this standard does Omelchenko 952(c) of the *8 cause, or the Commis- appointing authority tutes Universal to that made in change This is similar sion. v. Pa.Commonwealth Corp. Krawczynski, Steel 9 Cyclops 176, (1973), to The A.2d 757 where amendment Ct. Act1 Compensation Workmen’s shifted Pennsylvania Compensation Ap- of fact-finder from Workmen’s role in that case that to the referees. concluded Board We peal the time change pending to cases at scope the board’s of review. the amendment altered amended, P.L. P.S. 1-1031. §§ Act of June 1. 952(c) of the Act should have Accordingly, Section been I considered in this would affirm the order appeal. Commission.

600 A.2d 705 City Petition of the of Scranton for Validation of Tax Title and Approval City of Real in the of Sale Estate Situate Scran 23, Map ton Block Lot # 157.09-010-030.01 As Ward Gaughan sessed to: Katherine SCRANTON, Appellant.

Appeal of CITY OF Pennsylvania. Commonwealth Court of on Briefs Submitted June Decided Dec. notes Section opinion, majority of its gives the invalidates Service Act Civil authority’s to power modify authority regardless whether however, states, that this section proven. majority The are section to this case because the apply the Act does not Act and because change to the a substantive connotes added to the section was removal occurred before Act. make a 952(c) does substantive I believe that Section not changes the Commission’s merely in the law change but review, Where procedural is a matter. scope of review, it is not scope only concerns legislation litigation but also passage, after its litigation begun Wagner, Inc. v. passage. Boyd C. existing the time of at District, 120 Pa.Commonwealth Ct. Area School Shamokin 952(c) change does not 596, 549 A.2d Section An em- under the Act. rights substantive employee’s only terminated cause. may still be ployee 952(c) body is as to what can made Section only change consti- that an conduct employee’s make the determination