Pisano v. Department of Environmental Resources

666 A.2d 379, 1995 Pa. Commw. LEXIS 453
CourtCommonwealth Court of Pennsylvania
DecidedOctober 13, 1995
StatusPublished
Cited by1 cases

This text of 666 A.2d 379 (Pisano v. Department of Environmental Resources) 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
Pisano v. Department of Environmental Resources, 666 A.2d 379, 1995 Pa. Commw. LEXIS 453 (Pa. Ct. App. 1995).

Opinion

LORD, Senior Judge.

Diana Pisano has filed this petition for review from an order of the State Civil Service Commission (Commission) which dismissed her petition for enforcement on finding that DER had complied with a previous Commission order.

The relevant underlying facts which led to the Pisano’s filing an enforcement petition before the Commission are that, in March 1991, Pisano was demoted in lieu of furlough from her position as Administrative Officer I to Administrative Assistant I. At her request, she was then furloughed. Subsequently, on March 24, 1993, the Commission found that Pisano was improperly furloughed1 and entered the following order:

that the appellant be reinstated in her regular position as Administrative Officer I effective within thirty (30) calendar days following receipt of a copy of this Adjudication and Order, and orders that the appellant be reimbursed for wages and emoluments since the close of business on February 28, 1991, less any wages earned and benefits received under the Public Laws of Pennsylvania as established by a sworn statement to be submitted by the appellant.

(emphasis added).

According to the Commission’s opinion in support of its decision on the enforcement petition, which Pisano now appeals, her employment history is as follows:

Appellant (Pisano) was initially notified of a demotion from her regular’ status Administrative Officer (AO) 1 position to an Administrative Assistant (AA) 1 position in lieu of furlough from the appointing authority. Stip. No. 1. Upon Appellant’s request, the appointing authority withdrew the demotion and, instead, furloughed the appellant effective March 1, 1991. Stip. No. 2. From the effective date of furlough through December 30, 1991, the appellant was (apparently) unemployed and receiving unemployment compensation benefits. Stip. Ex. E. On December 30,1991, appellant began employment with the Department of Public Welfare. Stip. Ex. E. Said employment continued through March 24, 1993, when appellant left that job. Stip. No. 6. On December 14, 1993, the appointing authority provided Appellant with a check for $5,958.66 (gross), its determination of the amount due under our Order. Said amount was calculated as “the difference between what [appellant] would have received as an Administrative Assistant I and the Administrative Officer I position.” Stip. Ex. D.

A hearing on Pisano’s petition for enforcement was scheduled, but the parties instead elected to submit a stipulation of facts. Pisa-no argued in briefs before the Commission [381]*381that the March 24 order required DER to subtract from her back pay the actual wages and benefits she received, not, as DER did, to subtract the wages she would have earned had she remained in the administrative assistant position. On consideration of the stipulation and both parties’ briefs, the Commission made a finding that DER “has complied with the Commission’s March 24, 1993 Order .... ” Hence, the Commission declined to grant the relief Pisano requested in her petition for enforcement.

On appeal to this Court, Pisano contends that the Commission erred in not concluding that the question of whether her damages were to be mitigated according to DER’s calculation was decided by the Commission’s March 24, 1993 reinstatement order, which was final and not appealed by DER. Thus, Pisano argues, DER is bound by that order to calculate the amount of back pay damages by taking her actual earnings and unemployment compensation and deducting them from her gross earnings in the Administrative Officer position.

On the other hand, DER argues that it complied with the March 24 order by reinstating Pisano to her original position and, applying the correct principles of mitigation, compensating Pisano to full wages: that is— back salary calculated as the difference between the salary Pisano would have received as Administrative Officer 1 and the salary she would have received as Administrative Assistant 1 had she not chosen to relinquish that position.

Pisano would have us apply either the doctrine of res judicata or that of collateral estoppel to hold that the Commission should have barred DER from “imposing its own legal conclusion regarding mitigated damages” and “relitigating the issue absent a timely petition for reconsideration or proper and timely appeal.” We agree with DER, though, that neither doctrine is apposite here. Res judicata applies, when certain conditions are present, to bar the relitigation of the same cause of action, City of Pittsburgh v. Zoning Board of Adjustment, 522 Pa. 44, 559 A.2d 896 (1989); collateral estop-pel bars the’relitigation of an already judicially determined issue in a subsequent cause of action, Office of Disciplinary Counsel v. Duffield, 537 Pa. 485, 644 A.2d 1186 (1994). In seeking enforcement of the Commission’s March 24 order, Pisano was prosecuting the same cause of action she brought in her original petition to the Commission, in which she sought reinstatement and back pay. The question of how back pay was to be calculated was never litigated until the enforcement petition was brought. Hence, we find that neither doctrine is availing to Pisano.

However, we do not agree that the Commission’s decision is legally correct. We return to the clear language of the order that was to be enforced, which directs DER to reimburse Pisano for wages and emoluments since her last day of work as an administrative officer at DER “less any wages earned

and benefits received-” The order does not state that DER should subtract wages Pisano could have received. Moreover, as the parties stipulated, Pisano filed a sworn statement as directed by the March 24 reinstatement order. That statement was an affidavit of the wages Pisano earned and the benefits she received, consistent with the language of the order.

[Pisano] filed with [DER] the affidavit required under the Order setting forth all wages earned and unemployment compensation received during the period of [Pisa-no’s] furlough. Copy attached hereto as Exhibit ‘A’.” (Stipulation of Fact No. 5, June 22, 1994, emphasis added).

Thus, Pisano’s interpretation of the order is correct.2

DER apparently attempted at Pisano’s furlough hearing to introduce evidence of Pisa-no’s reasons for refusing to accept the demotion position in order to mitigate damages but was rebuffed by the commissioner presiding when she ruled such evidence was not relevant. DER did not take exception to this ruling. The Commission, on reconsideration [382]*382of its earlier order, directed DER to reinstate Pisano to her original position with back pay as indicated — wages and emoluments since her last day of work as an administrative officer, less wages earned and benefits received. If DER believed the order was incorrect, incomplete or even ambiguous, it should have petitioned for clarification or reconsideration or should have appealed; DER took none of these steps.

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Bluebook (online)
666 A.2d 379, 1995 Pa. Commw. LEXIS 453, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pisano-v-department-of-environmental-resources-pacommwct-1995.