Opinion
April 11, 1940.
June 25, 1940.
Unemployment compensation — Employees — Change in application — Certification to list of eligibles — Appointment — Retention beyond probationary period — Power of subsequent board.
1. In the absence of fraud, misrepresentation or misconduct, the Unemployment Compensation Board of Review has no authority to review, reconsider or revoke the action of a former board in allowing an applicant to change his application so as to apply for another position and in certifying his name on the list of eligibles for the other position, or to remove his name from the eligible list for the other position after his appointment to that office and his retention therein beyond the probationary period of nine months, when his appointment became permanent, and to order his dismissal from his position.
2. Kassarich v. Unemployment Compensation Board of Review, 139 Pa. Super. 599, held controlling.
Appeal, No. 48, March T., 1940, from decision of Unemployment Compensation Board of Review of Department of Labor and Industry, Appeal No. C.S. 44-178, in case of Katherine V. Speer v. Unemployment Compensation Board of Review, Department of Labor and Industry.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, STADTFELD, PARKER, RHODES and HIRT, JJ. Order reversed.
Appeal by employee to Unemployment Compensation Board of Review from dismissal by Secretary of Labor and Industry.
The facts are stated in the opinion of the Superior Court.
Appeal dismissed. Employee appealed to the Superior Court.
Error assigned was order of the board.
William S. Rahauser, of Rahauser, Van Der Voort Royston, with him John A. Robb, for appellant.
R. Carlyle Fee, Assistant Special Deputy Attorney General, with him Charles R. Davis, Special Deputy Attorney General, and Claude T. Reno, Attorney General. for appellee.
Argued April 11, 1940.
This appeal is governed by our decision in Kassarich v. Unemployment Compensation Board of Review, ( 139 Pa. Super. 599, 12 A.2d 823), which requires a reversal of the decision and order of the board.
The appellant made application as provided in section 208 (f) of the Unemployment Compensation Law of December 5, 1936, (P.L. of 1937, p. 2897), for employment as a senior interviewer, position No. 1417-1, as established and classified by the Secretary of Labor and Industry, pursuant to section 208(d). Before taking the examination, she asked, and was given, permission by the board to change her application so as to apply for the position of junior interviewer, No. 1416. She took the examination on December 30, 1937, and passed. The same examination applied to both positions, and she passed for both positions, but her grade for junior interviewer, to which she had changed her application by permission of the board, was somewhat higher, based on the difference in experience requirements. She was placed on the list of eligibles for junior interviewer and was appointed a junior interviewer for Allegheny County on December 7, 1938. She was retained in that position without complaint for more than nine months, which retention thereby automatically confirmed her as a permanent appointment in the civil service created under said Act (sec. 208(k)).
On October 20, 1939, after notice and a hearing, she was ordered to be removed from her position by a succeeding board, and her name was stricken from the list of eligibles for junior interviewer and restored to the list for senior interviewer, on the ground that the former board had no authority to permit her to change the position applied for in her application after the date for filing applications had closed.
No fraud, misrepresentation or misconduct was alleged or proved against her; and in their absence, the present board had no authority, under the Act, to review, reconsider or revoke the action of the former board in allowing the change in appellant's application and in certifying her name on the list of eligibles for junior interviewer, or to remove her name from the eligible list for junior interviewer after her appointment to that office and her retention therein beyond the probationary period of nine months — when her appointment had become permanent — and to order her dismissal from her position.
As the statement of questions involved does not raise the question of the power of this court to order reimbursement to appellant for back salary, we shall not pass upon it in this appeal. See, however, Daley v. Unemployment Compensation Board of Review, 140 Pa. Super. 203, 13 A.2d 888.
The decision and order of the Unemployment Compensation Board of Review is reversed, the appeal is sustained and the appellant is ordered to be restored to the same grade of employment in which she had been employed.