DeJohn v. Department of Public Welfare

657 A.2d 1017, 1995 Pa. Commw. LEXIS 166, 1995 WL 225216
CourtCommonwealth Court of Pennsylvania
DecidedApril 13, 1995
DocketNo. 1094 C.D. 1994
StatusPublished
Cited by1 cases

This text of 657 A.2d 1017 (DeJohn v. Department of Public Welfare) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DeJohn v. Department of Public Welfare, 657 A.2d 1017, 1995 Pa. Commw. LEXIS 166, 1995 WL 225216 (Pa. Ct. App. 1995).

Opinion

McGINLEY, Judge.

Daniel DeJohn petitions for review from the March 30,1994, order of the Department of Public Welfare, Office of Hearings and Appeals (DPW) which adopted the recommendation of the hearing officer denying De-John’s appeal with respect to benefits under [1018]*1018the Act of December 8, 1959, P.L. 1718, as amended, 61 P.S. §§ 951-952 (Act 534). We affirm DPW’s decision.

From June 27, 1990, through June 21, 1991, DeJohn was employed as a substitute youth development aide (YDA) at the New Castle Youth Development Center (YDC). DeJohn was hired to a limited term position to last for approximately six months. On January 5, 1991, DeJohn was injured while acting in the normal course of his duties as a YDA when breaking up a fight between residents. DeJohn went on disability leave as a result of his injury and received Act 534 benefits.

By letter dated May 30, 1991, YDC terminated DeJohn’s employment due to the temporary nature of his position effective June 21, 1991. Consequently, his Act 534 benefits were discontinued.1 On July 30, 1991, the State Civil Service Commission (SCSC) notified DeJohn that DPW was removing him from their certification list for the position of YDA. SCSC gave him until August 6, 1991, to respond. DeJohn did not appeal this removal but, by letter dated November 4, 1992, DeJohn appealed the discontinuance of Act 534 benefits to DPW. By order dated March 30, 1994, DPW adopted the recommendation of the hearing officer denying DeJohn’s appeal. DeJohn filed a petition for review of that order with this Court.

The sole issue for our consideration is whether DeJohn’s entitlement to Act 534 benefits ceased upon his termination from employment at YDC.2 DeJohn asserts that DPW erred by finding that he did not achieve regular employee status. He argues that if an employee is a “regular employee” as defined by the Civil Service Act, Act of August 5, 1941, P.L. 752, as amended, 71 P.S. § 741.3, he or she shall not be removed except for just cause. See Section 807 of the Civil Service Act, 71 P.S. § 741.807. A “regular employe” is defined as “an employe who has been appointed to a position in the classified service in accordance with this act after completing his probationary period.” Section 3(k) of the Civil Service Act, 71 P.S. § 741.3(k). DeJohn contends that he was a “regular employee” because he completed the probationary period mandated by Section 603 of the Civil Service Act, 71 P.S. § 741.603 which provides that “the employe shall at the completion of the probationary period become a classified service employe.... ”

DeJohn asserts that because he was a “regular employee” YDC must establish just cause for his termination and that since YDC was not required to prove just cause his Act 534 benefits were prematurely terminated. DeJohn cites Sullivan v. Commonwealth, Department of Transportation, 65 Pa.Commonwealth Ct. 382, 442 A.2d 416 (1982), to support the proposition that his status as a temporary employee does not effect his standing to appeal his termination. However, in Sullivan the petitioners were never permanently separated from classified service. Their layoffs were allegedly furloughs3 which are temporary separations. By contrast, YDC completely terminated DeJohn’s position. This was not a temporary separation akin to a furlough.

In Sullivan we were deciding whether petitioners who were regular employees and had contested the termination of their employment, were eligible to have their appeals heard. From the record it appears that De-John did not appeal his removal, or otherwise challenge his termination from employment with YDC.4 YDC was never required to [1019]*1019prove just cause for removal because DeJohn never disputed the expiration of his temporary position with YDC. DeJohn essentially asks us to continue his Act 534 benefits pending an appeal which he has failed to take.

DeJohn contends that until YDC meets its burden of establishing just cause for removal, he is qualified to receive Act 534 benefits. A state employee who is not afforded a due process hearing prior to the termination of Act 534 benefits is entitled to the restoration of benefits from the date of termination to the date of the order disposing of employee’s appeal. Mihok v. Department of Public Welfare, 135 Pa.Commonwealth Ct. 265, 580 A.2d 905 (1990). DPW discontinued DeJohn’s Act 534 benefits and after a hearing DeJohn appealed to us. DeJohn, however, did not appeal his termination from employment and no hearing concentrating on just cause for his removal took place. SCSC’s July 30, 1991, letter to DeJohn contained adequate notice to afford him sufficient opportunity to contest his removal, but DeJohn’s termination from employment was not appealed.

We have previously held that an employee’s receipt of Act 534 benefits is contingent upon continued employment. Tuggle v. Commonwealth, Department of Public Welfare, 133 Pa.Commonwealth Ct. 227, 231, 575 A.2d 664, 666 (1990), appeal denied, 527 Pa. 659, 593 A.2d 429 (1991). We now hold that an employee is not entitled to receive Act 534 benefits after termination from temporary civil service employment where that employee did not seek a determination to challenge the just cause for his separation. Nothing in the Civil Service Act requires that an appointing authority retain an employee on disability pending final disposition of outstanding claims. Mihok v. Department of Public Welfare, Woodville State Hospital, 147 Pa.Commonwealth Ct. 344, 350, 607 A.2d 846, 849 (1992). We will not grant a continuation of benefits indefinitely. Since DeJohn did not appeal his removal he has no outstanding claim and even if an appeal was pending such a plea would not justify his retention of 534 benefits.

Section 1 of Act 534 states in pertinent part:

[A]ny employe of a ... Youth Development Center under the Department of Public Welfare, who is injured during the course of his employment by an act of ... any person confined in such institution ... shall be paid, by the Commonwealth of Pennsylvania, his full salary, until the disability arising therefrom no longer prevents his return as an employe of such department, board or institution at a salary equal to that earned by him at the time of his injury. (Emphasis added.) 61 P.S. § 951.

DeJohn’s entitlement to Act 534 benefits ended when his position at YDC was terminated. He is no longer prevented from returning as an employee because of his disability; he is prevented from returning because his temporary position with YDC expired.

We agree with DeJohn that Section 807 of the Civil Service Act, 71 P.S. § 741.807, provides that no “regular employee” shall be removed except for just cause. More precisely, a “removal” as defined by Section 3(v) of the Civil Service Act, 71 P.S. § 741.3(v), is “the permanent separation from the classified service of an employe who has been permanently appointed.” (Emphasis added). DeJohn, throughout the course of his employment with YDC, was a temporary employee.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

McWreath v. Department of Public Welfare
26 A.3d 1251 (Commonwealth Court of Pennsylvania, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
657 A.2d 1017, 1995 Pa. Commw. LEXIS 166, 1995 WL 225216, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dejohn-v-department-of-public-welfare-pacommwct-1995.