Truax
v.
Commonwealth

Commonwealth Court of PennsylvaniaApr 6, 1979
41 Pa. Commw. 525 (Pa. Cmmw. Ct. 1979)
41 Pa. Commw. 525399 A.2d 1159

Argued March 7, 1979

April 6, 1979.

Civil service — Furlough — Overstaffing — Hearsay — Sufficient competent evidence — Harmless error.

1. In a proceeding before the State Civil Service Commission, the admission of a hearsay report in support of the contention that a particular department was overstaffed so that furloughing of employes was justified is harmless error, if error at all, when sufficient competent evidence was also received which supported a finding of overstaffing. [526-7]

Argued March 7, 1979, before President Judge BOWMAN and Judges WILKINSON, JR., MENCER, ROGERS, BLATT, DiSALLE and MacPHAIL. Judges CRUMLISH, JR. and CRAIG did not participate.

Appeal, No. 648 C.D. 1978, from the Order of the State Civil Service Commission in case of George D. Truax v. Department of Transportation, Appeal No. 1882.

Employe furloughed by Department of Transportation. Employe appealed to the State Civil Service Commission. Appeal denied. Employe appealed to the Commonwealth Court of Pennsylvania. Order vacated. Case remanded. ( 28 Pa. Commw. 403) Hearing held. Furlough approved. Employe appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.

Newton C. Taylor, with him Robert B. Stewart, III, for petitioner.

Frank A. Fisher, Jr., Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Gerald Gornish, Acting Attorney General, for respondent.


The appellant, George D. Truax, a regular status civil service employe of the Department of Transportation, was furloughed assertedly by reason of overstaffing in Highway District 9-0 to which he was attached. His furlough was effected by application of a provision of a collective bargaining agreement between the Commonwealth and a Union representing affected employes, as provided by the amendment of Section 802 of the Civil Service Act, made by the Act of October 7, 1974, P.L. 676. That amendment allowed procedures for furloughs contained in labor agreements to be applied in lieu of the procedures provided in Section 802.

Act of August 5, 1941, P.L. 752, as amended, 71 P. S. § 741.802.

Truax makes a number of attacks upon the constitutional and statutory validity of the amendment. All, save one, raise questions which we fully discussed and disposed of in Scuoteguazza v. Department of Transportation, 41 Pa. Commw. 534, 399 A.2d 1159 (1979). In that case, which is controlling here, we upheld the amendment against all these attacks.

The one argument made by Truax not common to those made in Scuoteguazza v. Department of Transportation, supra, is that this record did not contain substantial competent evidence of the alleged overstaffing. This contention is based primarily on the asserted error of the Commission in admitting into evidence a report made by an assistant district engineer who did not testify at the hearing. Truax says that the report should not have been admitted because its author was not present for cross-examination, citing A. P. Weaver Sons v. Sanitary Water Board, 3 Pa. Commw. 499, 284 A.2d 515 (1971). The difficulty with the argument is that there is sufficient record evidence other than that supplied by the report supporting the Commission's finding that there was indeed overstaffing in Highway District 9-0. The district engineer testified that he had personal knowledge of district project work loads and that there was indeed overstaffing. This evidence provided sufficient basis for the Commission's finding and made the admission of the report, if it was error, harmless.

Order affirmed.

ORDER

AND NOW, this 6th day of April, 1979, the Order of the State Civil Service Commission is hereby affirmed.