7 Pa. Commw. 566 | Pa. Commw. Ct. | 1973
Opinion by
This is an appeal from an Order of the State Civil Service Commission (Commission) dismissing the appeal of David J. Humphreys (Humphreys) from his termination of service as an “Appeals Referee I, provisional status,” by the Secretary of Labor and Industry (appointing authority), effective at the close of business December 1, 1971.
Humphreys was appointed a provisional Appeals Referee I with the Bureau of Employment Security, Department of Labor and Industry of the Commonwealth on January 15, 1970. During the period of almost two years in which he was employed in that capacity, he was rated by his superiors on the required performance evaluation reports as being “very good” to “excellent.” During the spring of 1971, the Commission held an examination for eligibility for appointment, in the classified service, to the position of “Appeals Referee I,” and on October 1, 1971, published a certification of eligibility list in accordance with the results of the examination. On the date of the list, there were two such positions available in Administrative District Seven.
The record clearly shows that when Humphreys was first appointed, he resided in District Seven and during most of his term of service, was in residence there. However, at the time of the examination and at the time of the certification of the eligibility list for District Seven, he had become a resident of District Five.
The eligibility list for District Seven listed the names of three successful candidates who resided in the district, and thereafter listed “Names From Other Administrative Districts . . .” under which the name of Humphreys appears.
Humphreys was notified by the Commission that he was “not within reach for a Civil Service appointment” and therefore, was advised of the termination of his service as an Appeals Referee I. Thereafter, Humphreys filed a timely appeal under Section 951 of the Civil Service Act, Act of August 5, 1941, P. L. 752, 71 P.S. §741.951. Hearings were held before the Commission, resulting in an adjudication and the Order from which this appeal was taken.
Humphreys has presented three issues to this Court. First, he contends that the Veterans Preference Act is unconstitutional as being in violation of both the Pennsylvania and United States Constitutions. Secondly, he contends that the second (Murray) appointment was illegal for the reason that it was a promotional appointment made while there was no promotional list; and lastly, he contends that his disqualification by reason of residence was improper.
Humphreys arduously argues for the constitutionality of the Veterans Preference Act, Act of May 22, 1945, P. L. 837, as amended, 51 P.S. §492.1, et seq. However, before it becomes necessary for us to address ourselves to the constitutionality of veterans’ preferences, it is essential to Humphreys’ argument that the residence requirement be found unconstitutional. For, if the residence requirement is valid, Humphreys would remain on the additional or supplemental district list, and still would not have been considered for the position, regardless of the constitutionality or unconstitutionality of the Veterans Preference Act.
Section 501 of the Civil Service Act, 71 P.S. §741.-501, states in pertinent part that: “Persons applying for positions or promotions in the classified service shall be citizens of the United States and residents of the Commonwealth mid where applicable, of the admin
In the case of Rubin v. Bailey, 398 Pa. 271, 157 A. 2d 882 (1980), our Supreme Court stated: “In considering the constitutionality of a statute several basic and imperative rules are to be kept clearly in mind. First of all, the Statutory Construction Act of 1937 admonishes ‘That the Legislature does not intend to violate the Constitution of the United States or of this Commonwealth’ : Act of May 28, 1937, P. L. 1019, Art. IV, §52(3), 46 P.S. §552(3). Thus, a legislative enactment is attended by a legal presumption of its constitutional validity. In Hadley’s Case, 336 Pa. 100, 104, 6 A. 2d 874, it was said to be ‘. . . axiomatic that he who asks to have a law declared unconstitutional takes upon himself the burden of proving beyond all doubt that it is so. . . . All presumptions are in favor of the constitutionality of acts and courts are not to be astute in finding or sustaining objections to them.’ Of course, the presumption of constitutionality is not conclusive but the requirements for rebutting it are indeed exacting. Consequently, ‘ . . we can declare an Act of Assembly void, only when it violates the Constitution clearly, palpably, plainly; . . Tranter v. Allegheny County Authority, 316 Pa. 65, 75, 173 A. 289, quoting Sharpless v. Mayor of Philadelphia, 21 Pa. 147, 164.
Humphreys attempts to bear his heavy burden by asserting that he lived outside the district which he served as a provisional Appeals Referee, and that he managed to achieve a better than average work evaluation. While this fact certainly bears on the reasonableness of the classification, standing alone, it is not sufficient to meet the heavy burden required of him. Unfortunately, Humphreys mentions almost as an afterthought that the classification is irrelevant to the duties of the job, since a referee is not restricted to hearing cases in the district of appointment, but he does not offer a convincing argument in this regard.
The Commonwealth, on the other hand, contends that Appeals Referees are assigned to a specific district and hear claims which for the most part are held within that district, concerning individuals who for the most part reside in the same district. By failing to present more evidence on this point, we must conclude that Humphreys has failed to meet the burden of proof necessary to find the classification unconstitutional. In passing, we note that the Pennsylvania Supreme Court, in the case of Jones v. Kulpmont Borough School District, 333 Pa. 581, 3 A. 2d 914 (1939), has stated that a reasonable residence regulation may be sufficient ground for dismissal.
We hold that the language of Section 501 grants to the Commission the discretion to establish the requirement that appointees be residents of the district wherein the appointment is to be made. In this case, Humphreys patently discloses that he is not a resident of
Focusing on the second appointment (involving Murray), it is important to note that the issue involved a promotion. Humphreys offers two challenges to this appointment. First, he urges that Section 501 of the Civil Service Act, 71 P.S. §741.501 provides specific procedures for promotion. That section provides in part: “As far as is in the judgment of the commission consistent with the best interests of the Commonwealth, vacancies shall be filled by promotion. The commission may limit competition in promotion examinations to employes in the classified service who have completed their probationary period in a class or classes designated in the public notice of the examinations, and may permit promotions to be accomplished by any one of the following plans: (1) by appointment from open competitive lists; or (2) by achieving a place on an eligible list after a promotional examination, such examination having been given at the request of the ap
In summary then, we hold that it was not an abuse of discretion, nor an error at law, for the appointing authority to have chosen an eligible candidate residing within the administrative district wherein the appointment was made, thereby ignoring Humphreys who lived outside the administrative district, nor was it an error to appoint Murray by way of the promotional route within the classified service, as permitted by the statute aud regulations, thereby ignoring Humphreys who was not eligible for consideration under such promotional route. In view of this holding, it is not necessary for this Court to pass upon the constitutional issues concerning veterans’ preference, which were raised bj^ Humphreys, because they have no bearing upon the termination of his service as a provisional employe.
We recognize that one of the conclusions of law made in the adjudication of the Commission states that the two appointments which were made are in accordance with the Veterans Preference Act; however, this conclusion was not necessary for the disposition of the case. Whether veterans’ preference was utilized in the appointments of Stonage and Murray is not relevant to the issues concerning whether Humphreys was properly
In light of the foregoing, we affirm the Order of the Civil Service Commission dated April 20, 1972.
Tliis issue was fully covered in the ease of Williams v. Civil Service Commission, not yet reported, but filed simultaneously with this opinion.