77 Pa. Commw. 607 | Pa. Commw. Ct. | 1983
Opinion by
Manfred E. Hauptmann (Petitioner) appeals from the July 12, 1982 Supplemental Adjudication and Order of the Civil Service Commission (Commission) which dismissed Petitioner’s appeal from his demotion in lieu of furlough by the Department of Transportation (DOT), effective July 3, 1978. The order now on appeal affirms the Commission’¡s previous determination that Petitioner failed to appeal his Performance Evaluation Report (PER) within twenty days. As a consequence, Petitioner’s appeal from his demotion, which was based upon that PER, was dismissed.
In its consideration of Petitioner’s appeal, the Commission initially refused to hear evidence regarding Petitioner’s PER of September 27, 1977, which evaluated Petitioner’s performance from the period November of 1976 to November of 1977, because of Petitioner’s failure to timely appeal the PER. An appeal to this Court from that order resulted in a remand to the Commission for the purpose of hearing evidence on the matter of whether Petitioner had timely appealed the PER or whether DOT was estopped from denying the timeliness of Petitioner’s appeal regardless of the twenty day limit.
■The relevant facts are set forth in Hauptmann I. Petitioner had been employed by DOT since 1962. In 1977, he worked as a Transportation Construction Manager I. The record at the remand hearing shows that at the time of Petitioner’s PER now at issue, DOT was in the process of revising the standards for performance ratings for persons working in Petitioner ’s position.
Approximately one week later, Petitioner learned from Mr. Ateto that the maximum allowable rating for his position was 18.4.
Petitioner admits that he did not file an appeal from his PER within twenty days of September 27, but he argues that since he was unaware of the twenty day limitation and since his supervisors and DOT personnel officer misled him, it was error for the Commission to hold that DOT was not estopped from invoking the bar of the twenty day appeal period.
The Commission’s crucial finding in its Supplemental Adjudication is:
The appointing authority did not conceal any material fact nor did they mislead appellant concerning his appeal rights to this Commission so as to excuse appellant’s failure to appeal his PER until June, 1978.
The Petitioner’s argument that this was error is fatally flawed because all but one of the statements he relies upon were made to him by DOT personnel in
This Court has held that a person must have been induced to relax his vigilance by some affirmative fraud, deception or concealment of fact before he may invoke the doctrine of estoppel to extend a mandatory time limit. Nyo v. Pennsylvania Labor Relations Board, 53 Pa. Commonwealth Ct. 646, 419 A.2d 244 (1980). We find no evidence of fraud, deception or concealment within the relevant time frame in the instant case. Moreover, the Civil Service Act does not require instructions to an employee concerning the right to appeal from a PER. Marks v. Civil Service Commission, 7 Pa. Commonwealth Ct. 414, 299 A.2d 691 (1973).
Finally, there is substantial evidence in the record to support the Commission’s finding that the rating actually received by Petitioner was the highest that the reviewing officer would have approved even though a higher maximum was permitted.
Order affirmed.
The order of the State Civil Service Commission dated July 12,1982, is affirmed.
Hauptmann v. Department of Transportation, 59 Pa. Commonwealth Ct. 277, 429 A.2d 1207 (1981), hereinafter Hauptmann I.
DOT’S PER forms are somewhat of a puzzle. See Hauptmann I, 59 Pa. Commonwealth Ct. at 279-80 n. 2, 429 A.2d at 1208 n. 2.
If Petitioner had received a rating of 18.4 on his PER he would not have been demoted.
In Ellis v. Department of Transportation, 33 Pa. Commonwealth Ct. 354 , 381 A.2d 1325 (1978) this Court held that a twenty
Although a DOT supervisor 'testified that there was a notice printed on the copy of the PER form given to an employee regarding the twenty day appeal period, no such notice appears on the form given to the Petitioner.