511 A.2d 887 | Pa. Commw. Ct. | 1986
Lead Opinion
Opinion by
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 feet 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.”
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 Commissions 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 Commissions 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 estates
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)
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.
Salary $37,098.30
Plus:
Annual Leave Payout for period of 10/3/78 to 10/23/79 $ 2,297.70
Annual Leave Adjustment $ 207.40
Personal Leave $ 277.50
Total $39,880.90
Less:
Income Earned during period of 10/3/78 to 10/23/79 $11,645.34
Amount owed to Dr. Elias $28,235.56
(Counsel for Appointing Authority’s letter to the Commission dated May 9, 1983).
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,
We now move to consideration of whether the monies the doctor earned during the period of his removal are properly allowed as an offset by the Appointing Authority under the Commissions order allowing a deduc
The Doctor took employment on June 25, 1979 and earned $18,398.60 in the 188 days to the year end or $97.86 per day; and actually earned $11,645.34 in the 119 days between June 25, 1979 and the reinstatement date of October 23, 1979. The Doctor had earned $7,700.00 in private practice in 1978 prior to his termination; that as a result of his unwarranted dismissal, he was required to close his practice and move; that as a result of his loss of private practice he was denied $7,700.00 in private practice income and lost $1,536.79 in closing his practice, or a total of $9,236.79. (Emphasis added.)
From this affidavit two things are evident. First, the doctor actually earned $11,645.34 in outside income during some period of his removal from employment. We note that the estate made this calculation on the same per diem basis as it had used to compute the doctors rate of pay. Second, the doctor lost $9,236.79 of his private practice income for the period in question. The estate seeks to offset these two figures against each other. The Appointing Authority actually offset the entire $11,645.34 from the salary it calculated that it owed the doctor. We must now decide the propriety of the offsetting each party is seeking to employ, keeping in mind that the Commissions statutory power under Section 951(a) is limited to awarding “salary and wages.” See supra note 2.
Although these terms are undefined in the Act, the Commissions general powers under Section 203, 71 P.S. §741.203, are limited to enforcing the provisions of the Act. In addition, it is clear from its legislatively designated title in Section 1, 71 P.S. §741.1, and the enunciated purpose in Section 2, 71 P.S. §741.2, that the
The affidavit states that Dr. Elias “took employment” on June 25, 1979 and earned $11,645.34 from that date until his reinstatement. While we are inclined to read “took employment” as a statement that Dr. Elias took another position in lieu of his civil service position, such factfinding is within the province of the Commission, not this Court. Because the Commission made no findings on whether the doctor actually took another job in lieu of his civil service position or merely continued in the part-time private practice which he had had during his period of employment with the Appointing Authority, we cannot determine whether the offset for $11,645.34 which the Appointing Authority seeks to make is permissible.
Thus, on remand, the Commission is directed to make findings on whether the doctor took a position in lieu of his civil service position or whether he merely continued for a period in his part-time private practice, which apparently he was authorized to do and able to conduct because in both 1978 and in 1979, while employed by the Appointing Authority, Dr. Elias earned additional income from this source. If it finds the former, the offset by the Appointing Authority is proper; if it finds the latter, no offset is allowed. If the Commssion finds that the $11,645.34 represents a combination of
As for the $9,236.79 in losses the doctor incurred via the loss of his “private” practice, we note that this loss would not have been from lost employment taken in lieu of his civil service position. Thus, the private loss here must be distinguished from, and cannot itself be offset against, the offset arising from any possible alternate employment. But even assuming that the cause of the doctors loss of private practice was his unwarranted removal, we believe that it is beyond the Commissions statutory power to award damages for these consequential damages because we can perceive no way in which this loss of income from a private practice Dr. Elias had in addition to his civil service employment constitutes “salary and wages” under Section 951(a).
Finally, we must consider whether the estate is entitled to an award of interest because of what it asserts is undue delay in awarding it backpay. The record discloses that the Commissions order directing the award of backpay was entered on January 13, 1983. The estate submitted its affidavit on January 21, 1983. The record does not reveal on what date the Appointing Authority submitted its figure to the estate, but it must have been prior to April 12, 1983, the date upon which the estate, dissatisfied with the Appointing Authority’s figure, sought enforcement of the order. This period of approximately three months does not constitute unreasonable delay. In addition, as both counsel concede in their briefs, there are no cases on point directly interpreting what constitutes salary and wages. Therefore, we cannot say that the Appointing Authority’s position in this matter has been unreasonable. Finally, we note that nothing in the Civil Service Act authorizes the Commission
Based upon the foregoing discussion, the order of the Commission is reversed in part and vacated in part and this case is remanded for further proceedings consistent with this opinion.
Order
Now, June 17, 1986, the determination of the State Civil Service Commission dated June 1, 1983 is reversed insofar as it refused to award overtime pay as a matter of law and the case is remanded for submission of evidence on the amount of overtime pay to which the estate is entitled. It is further ordered that the Commissions allowance of the offset of $11,645.34 by the Appointing Authority is vacated. On remand the Commission is ordered to determine whether Dr. Elias, as of June 25, 1979, took another position in lieu of his civil service position or continued his supplemental part-time practice. After determining these facts the Commission shall issue an appropriate order consistent with this opinion. The estates request for interest is denied.
Jurisdiction relinquished.
Our Court Order contained an error in the date of the improper removal. The removal date was October 3, 1978, not October 23, 1978. This feet is not in dispute.
Act of August 5, 1941, P.L. 752, as amended. Section 951(a), which was added by Section 27 of the Act of August 27, 1963, P.L. 1257, reads in pertinent part:
If [a] final decision [by the Commission] is in favor of the employe, the appointing authority shall reinstate him with the payment of so much of the salary or wages lost by him as the Commission may in its discretion order.
The letter from counsel for the Appointing Authority to the Commission explaining the computations employed by the Appointing Authority does not specifically state whether the $37,098-.30 is the doctors annual salary (i.e., for 365 days) or the total salary for the period of his removal {i.e., 385 days). Based upon the break
Section 951(b), which was added, by Section 27 of the Act of August 27, 1963, P.L. 1257, pertains to appeals to the Commission alleging discrimination. It reads in pertinent part:
If [a] final decision [by the Commission] is in favor of the aggrieved person, the commission shall make such order as it deems appropriate to assure the person such rights as are accorded him by this act.
We calculate the $6,753.26 by subtracting the doctors total wages on his 1979 tax return ($18,398.60) from the $11,645.34 that the estate indicates in its affidavit was earned by the doctor prior to his reinstatement. We note that the absence of a 1979 W-2 form from the Appointing Authority might be explained by the litigation in this matter and the feet that backpay was not actually received prior to the end of January, 1980.
We add here that the Commission could in its discretion deny overtime pay in the same way that it can order reinstatement and deny all or a portion of. back salary where an employees job related conduct warrants it. See Elias 1. But where, as here, the Elias I criterion is not met, see Elias ll, and this Court and the Commission have ordered the Appointing Authority to pay era/ loss of wages, the subsequent refusal of the Commission to consider overtime wages as felling within the province of these orders is in error.
Concurrence in Part
Concurring and Dissenting Opinion by
I join the majority opinion on the result reached in the matters of interest and offset.
I respectfully dissent to that part of the majority opinion which would remand to the Board for submission of evidence on the amount of overtime to which the estate of Dr. Elias may be entitled. I am of the opinion that the matter of overtime compensation for a salaried physician is too speculative.
I, accordingly, would affirm the Commission.