*1 593 episode. one criminal constitute actions PINTO, Roy Petitioner C. aggra- person guilty that a
We note if, aim, “attempts to inter assault vated v. causes intentionally knowingly cause or COMMISSION, SERVICE CIVIL deadly with a bodily injury another Respondent. 2702(a)(4). A 18 Pa.C.S.A. weapon.” if he murder person guilty attempted Pennsylvania. Court Commonwealth inten- step towards an “a substantial takes March 2004. Argued Anderson, 538 Pa. at killing.” tional testimony Sept. at trial 2004. A.2d at 28. The Decided initially shot Appellant established 19, 2004. Denied Nov. Reconsideration the victim turned victim the back as By up young son. pick down to bent bodily injury to the victim
causing serious namely, wounding the victim gun,
with a back, aggravated Appellant committed pushed his son
assault. After the victim way, he turned around
out of the gun, at time
grabbed Appellant’s which gun, blowing off then fired the
Appellant immediately Appellant finger.
the victim’s times, hitting the the victim
shot five more This leg. sec-
victim the stomach clearly gunshots
ond series of demonstrat- step Appellant
ed a substantial toward victim, and killing intentional attempted constituted murder. We
thus con- Appellant’s conclude that actions
thus acts. As separate criminal
stituted two
such, court’s we find no error in the trial merge charges aggravated
refusal murder for sentenc- attempted
assault and
ing purposes.
¶ Accordingly, for all of the reasons above, Appellant’s we affirm
set forth
judgment of sentence.
¶ AF- sentence Judgment
FIRMED.
594 Wood,
Karen Harrisburg, respon- D. dent. COLINS,
BEFORE: Judge, President SMITH-RIBNER, PELLEGRINI, Judge, LEADBETTER, Judge, Judge, COHN JUBELIRER, Judge. BY Judge
OPINION President COLINS. petition
Before this Court is a for review Pinto, by Roy brought an who individual on paid a leave of absence from his Correc- (CO) 1 position tions Officer with the De- (DOC), partment of Corrections work full time as elected Vice President Region Eastern of The Pennsylvania State (PSCOA Corrections Officers Association Union). or petition Said seeks review of adjudication an of the State Civil Service (Commission), Commission determining engaged that Pinto in prohibited political 905.2(b)(7) activity in violation (b)(10) and of the Civil Act of Service 5, 1941, 752, amended, August P.L. as 741.905b(b)(7) (b)(10), (Act),1 §§ P.S. (VP signed when he his name and his title PSCOA) gu- to a letter addressed then Rendell, bernatorial candidate Edward ad- vising the latter of PSCOA’s endorsement candidacy. of Rendell’s 21, 2001, May became representative official unit bargaining Jennings, Philadelphia, Thomas for Commonwealth corrections officers. Pin- W. petitioner. to, employed who was a Corrections 905.2(b)(7) (b)(10), (7) [S]oliciting support oppo- 1. Section P.S. votes 741.905b(b)(7) (b)(10), public added Sec- sition to a candidate for office in a Act tion 19 of June P.L. partisan election or a candidate of part, provides, pertinent party office. (b) person in [N]o the classified service shall (10) [E]ndorsing opposing part political management take a candidate for an active public partisan campaign. pro- or in a office in election or a Activities include, po- party hibited are candidate for subsection but office in to, advertisement, broadcast, following not limited activities: litical cam- paign, literature or similar material. January DOC, to December legislature elected Vice Pres- 1 with was Officer advisory opinion for an Region asked ident of the Eastern Smith, Chief Counsel for began working full time in that on Frederick as to whether elected 2001. Pursuant collective June *3 paid bargaining granted Pinto PSCOA officer who on leave agreement, DOC permitted under position his or her and other elected PSCOA officials “leave CO a political to form pay for the maximum term of of- the Commission’s rules without fice, forwarded years.” exceed three From action committee. Smith not to 2001, 19, advisory stating that McKillop opinion 1 to an June November from his or on leave directly paid compensation. Pinto his full PSCOA official exempt from re- position her is not CO 15, 2001, Ludwig, On Lawrence October activity, pursuant to political strictions on PSCOA, grant DOC to President of asked 103.11, 4 Rule Pa.Code Commission officials, Pinto, including five PSCOA leave 103.11(b). § letter clarified that clas- The in pay, with accordance with the State employees reg- who are on a sified service Employees’ Ludwig Retirement also Code. absence, ular or leave of absence leave seniority asked that DOC make retirement position, to take non-civil service are for these officials retroactive to their start activity restric- from the exempt date in PSCOA. tions, Pinto, employees but that such as 19, 2001, approved November DOC others, on Ludwig, and who are another Ludwig’s request and the five offi- absence, “regular not a type of leave cials, Pinto, including with for pay “leave absence,” exempt leave of are period of the start date with PSCOA in- Allegedly, Pinto was said restrictions. 31, expiration July until the of office on advisory opinion. about formed this arrangement, 2004.” Under this DOC Thereafter, the candi- PSCOA endorsed salary Pinto the he re- and benefits dacy for governor, Rendell Edward 1, pays ceived a CO while PSCOA Pinto, as Vice Presi- acting his difference between this amount and Pinto’s PSCOA, letter, dent of mailed Rendell a salary with PSCOA. DOC thereafter sub- 2002, 7, stating that dated October to for quarterly mitted bill all of PSCOA had voted endorse members Pinto, expenses for incurred and PSCOA day, candidacy. The next Rendell’s reimburses DOC. This allowed Pinto on PSCOA’s website. posted letter was earn credited State service and be able to participate employment in the State retire- foregoing of the ac On the basis absence, plan during ment leave of tions, convened an investi the Commission working for Es- while full-time PSCOA. hearing pursuant gatory May on sentially, according to the 951(d) Act2, to determine to Section of the was “carried” as a DOC Pinto Pinto, writing by his action whether seniority purposes, an ad- letter, had en posting aforementioned vantage not available to him while on leave political activity in gaged prohibited vio bargain- pay under the collective (10) 905.2(b)(7)and of the lation of Section ing agreement. to submit parties permitted Act. The were concluded that McKillop, The Commission beginning
In the
Fred
evidence.
consultant,
a leave without
only employees who take
lobbyist/government
a contract
non-civil service
before
to work
represented
who
PSCOA’s interests
August
P.L. 1257.
2.
20 of the Act
Added
exempt
are
Commonwealth,
from the
clearly
Act’s
with the
he is
on
prohibitions,
and that because Pinto
unpaid,
regular
and thus
leave of ab-
changed his leave status to that of a classi-
Finally,
argues
po-
sence.
that the
fied
on
or-
activity prohibitions
litical
contained in the
benefits,
der
receive retirement
he was
only
Act are not
unconstitutional
their
to the Act’s
activity re-
face, but
in violating
also unconstitutional
Accordingly,
strictions.
the Commission the
Pennsylvania
United States
Con-
found Pinto subject
disciplinary
action
stitutions
his First
infringing upon
905.2(f)
under Section
71 P.S.
rights.
Amendment
741.905b(f),3
suspended
him without
The
that once Pinto
argues
Commission
for five
*4
pay
days from his employment
requested
a
leave of
and was
with the State Correctional Institution at
absence,
obligation to
he assumed the
appeal
Rockview. This
followed.4
against po-
prohibitions
abide
the Act’s
appeal,
Pinto argues that his draft-
further
activity.
litical
The Commission
ing and
of
mailing
the letter cannot be
sending
signing
maintains that Pinto’s
polit-
considered “active
in a
participation”
a
gubernatorial
letter to
candidate Rendell
ical campaign within
of
meaning
the
the
endorsing
candidacy on behalf of
his
Act. Pinto also contends that the record is
posting it on
PSCOA members
devoid of
any
evidence that he had
connec-
PSCOA’s
both an en-
website constituted
tion to the
of
posting
the letter on PSCOA
dorsement of a candidate for
office
website,
that,
therefore,
he did not
election,
in
partisan
a
of
and a means
engage
any
in
of
solicitation
votes for Ren-
soliciting votes for the candidate. The
Further,
dell.
that no
avers
evi-
Commission avers that if Pinto wished to
dence of record
that
indicates
he endorsed
engage
political activity,
had to re-
he
Rendell
political advertisement,
in “a
a
quest an unpaid leave of absence.
broadcast, campaign,
any
literature or
sim-
material,”
ilar
that
the letter was even
In considering whether the Com
staff,
received or read
Rendell or his
let
determination,
mission erred
find
its
we
any
alone
of
prohibited
used
the
meth-
Pinto’s contention that the Act’s
ods of communication.
apply
restrictions do not
to him to
It is
be without
In
we con
position
regardless
respect,
Pinto’s
that
merit.
of
conduct,
his
cur with
unique
due
the
nature
the Commission’s determination
of
status,
employment
his
that
exempt
considering
receipt
he is
from
Pinto’s
of retire
political activity
all
restrictions
ment
contained
credits while on leave from his State
in the
job
officer,
and that
because
receives no
corrections
he is essential
advantage
economic
ly
absence,
relationship
on
leave of
pursu-
since
905.2(f)
provides
1ydays,
3. Section
of
Act
the
as fol-
if it finds that the violation does not
lows:
warrant termination.
person
A
in the classified service who
scope
4. Our
review a
in civil service case
violates this section shall be removed from
rights
whether constitutional
have been vio-
employment
appropriated
and funds
for the
lated,
committed,
of law
errors
or whether
position from which removed thereafter
findings
sup-
agency
the
fact
the
are
may
employe
pay
not be used to
the
ported by substantial evidence. Hetman v.
Provided, That,
individual:
the commission
State Civil Service
[Redirect Examination] A. No. letter, Q. First, Pin- back to the Mr. Q. materials Or similar to. broadcasts, adverstisements, cam- or literature?
paigns my knowledge.... letter, A. Not to signed this correct? You Examination] [Redirect A. Yes. seniority, 5302(b)(2) as if he were in full- part: provides in benefits
5. Section relevant service; and that the Statewide time active paid active member on An fully reimburse employee organization shall serving employer purposes of an expenses and costs employer officer for Statewide for all elected full-time the leave, organization a collective including, which is but limited not such representative under the act of bargaining to, payment in accor- contributions (P.L. 563, 195), known as July No. 5505.1 with sections dance Employe Provid- the Relations Act:1 Public directly organization either the if ed, for more leave shall not be That such the pays, Commonwealth or reimburses of the same three consecutive terms than for, made in employer contributions other office; fully employer shall com- that the with section 5507. accordance member, including, pensate but the to, re- wages, pension and salary, limited i etseq. § 1101.101 43P.S. benefits, other tirement contributions Q. Pinto, you Mr. did know that this was on a leave of absence letter, the October 7th letter to Mr. from his position, Corrections Officer 1 Rendell, was posted on PSCOA’s web- classified civil with position, the site? Department of (Department) Corrections I work full-time as the A. No. did not. elected Vice Presi- dént of Region the Eastern Pennsyl- the So, Q. you anyone didn’t instruct vania State Corrections Officers Associa- post it one the website? (Union). tion Pursuant the collective A. No. Union, agreement bargaining the with [N.T., 5/1/03, 86, 96, 97, pp. 99.] Department granted Pinto leave Other than the letter to Rendell and its office, for the not to maximum term posting website, on the PSCOA the Com- years. exceed to No- three From June proffer mission failed to any additional evi- vember Pinto his the Union during dence the hearing to establish that compensation. full to the Pursuant Pinto was engaging prohibited political (Code)2, Employees’ Retirement Code activity. We therefore find that the Com- requested Department Union that mission erred concluding Pinto vio- grant “with to make his pay” Pinto leave lated the activity restrictions of seniority retroactive to his start subsequently and in imposing the approved. date the Union which was penalty five-day of a suspension without Under provision, Department paid pay. salary Pinto his which and benefits were Accordingly, the order of the Commis- completely reimbursed the Union to the sion is reversed. *6 Commonwealth. The net effect was that Pinto was able for to earn credit State Judge LEADBETTER Judge service and to in the em- participate JUBELIRER, COHN dissent. ployment his plan during leave ORDER of while for the Union. working absence NOW, AND 14th day September on in pay” While leave “with his 2004, the order of the Civil Service Com- Union, as Vice President of the Pinto sent mission in the above-captioned matter is a endorsing letter to Edward Rendell reversed. candidacy governor for stating that the members of the had voted to en- Union Judge CONCURRING BY OPINION dorse Rendell. The Commission held an PELLEGRINI. investigatory hearing to determine wheth- person Because a who on a “leave of er Pinto engaged prohibited politi- had in absence,” unpaid, or not hold does a cal activity in violation Sections “position” service,” in the civil “classified 905(b)(7) (b)(10) pro- Act the which (Pinto) Roy subject was to or in vide that: 905.2(b)(7) (b)(10) violation of Sections (Act).1 person Civil Service Act No in classified service Because the majority the subject political concludes that he shall part was take active Act, to but not in violation of management political campaign. the I concur or in a only. in the result prohibited by Activities this subsection amended, August 5302(b)(2). 1. Act of § P.L. 2. 71 Pa.C.S. 741.905b(b)(7) (b)(10). §§ 71 P.S. to, disagree as I
include, fol- the Act is irrelevant but are not limited the subject to the Act. Pinto was even lowing activities: are foreclosed employees all state Not enumer- engaging (7) of or in Soliciting support votes in Act; who are only employees ated the public a of- opposition to candidate for in the “classified civil service.” partisan or a candidate 741.8(d)(4), fice in a election 3(d)(4) Act, § the P.S. political party for office. include: “All “classified service” to defines created
positions existing now or hereafter Commission.” the State Civil Service under 3(f) as “a “position” defines (10) Subsection a candi- Endorsing opposing responsibili- of current duties and group partisan public date for office in a elec- by competent assigned delegated ties party tion or candidate for authority part- requiring the full-time or advertisement, office person.” of one This employment time broadcast, literature or simi- campaign, employee part for an to be means that added.) (Emphasis lar material. service, classified he or she must be Ultimately, the Commission concluded that holding to be performing current duties subject be- disciplinary he was action position in the classified civil service. Be- only employees cause who took a leave performing any Pinto is not current cause pay to work a non-civil service Commonwealth, he can- duties for the then exempt politi- were Act’s civil not be a member of “classified activity prohibitions. cal Because Pinto service.” changed had his leave status to a classified That an has to have current service order to a member of the duties to be considered receive retirement benefits and the letter civil is confirmed classified Sec- activities, impermissible constituted 741.807, tion 807.1 of the P.S. Commission found was to the provides following regarding which suspended Act and him without leaves absence: *7 days from his employment. five An who has employe been majority appeal, reverses the of an at the discretion leave of absence concluding Commission’s decision that shall, upon authority expira- appointing subject while Pinto to the Act because was absence, of the leave of have the tion absence, he was on a leave of he was return the class and civil right to not in violation of the Act there of because held, he previously service status which prove insufficient to that he was evidence is contained in the provided such class activi- engaging prohibited was agency, of the or plan current class However, holding, ty. reaching that civil status in the any class and agreed majority with the Commission that he grade, provided that same or lower provision Pinto of was qualifications given meets the minimum receiving Act because he was plan agency, of the in the classification job, on leave from his State credits while in all instances there provided that three and “an individual in Pinto’s could vacancy appointing with the same is only if is a receive retirement credits he added.) authority. (Emphasis (Majority leave.” 6-7.) definitions, whether em- separately at I write be- Under these opinion unpaid on a leave ployee not violate cause whether did did absence is an employ- irrelevant. Because only
ee “right has the to return to the
class and civil service status” after a leave absence, that means that em- when an
ployee is on a absence he or she longer
no in the class or civil status in
which he or she In previously held. other
words “return” the has had to
have left the classified service when aon Therefore,
“leave absence.” once Pinto absence,
took a leave no longer was
member of the classified civil service.
Because Pinto is not a member of the
classified civil service while on leave of
absence, plain under language prohibitions contained
905(b) of the Act do apply because only
they apply employees in the classi-
fied civil Accordingly, service. I while also
would reverse the I do would only
so on this basis and concur in the
majority’s opinion. ADVERTISING,
ADAMS OUTDOOR
LTD., Partnership, orga- a Limited
nized under the Laws the State of
Minnesota, by general managing its
partner, Advertising, Adams Outdoor
Inc., Petitioner
v.
DEPARTMENT OF
TRANSPORTATION, Respondent. Pennsylvania.
Commonwealth Court of Aug.
Submitted on Briefs 2004. Sept.
Decided 2004.
Reargument Denied 2004. Nov.