IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Amy Mastrine, : Petitioner :

:

v. : No. 629 C.D. 2017

: State Civil Service Commission : Submitted: December 22, 2017 (Torrance State Hospital, Department : of Human Services), : Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE ANNE E. COVEY, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE SIMPSON FILED: April 13, 2018

Amy Mastrine (Mastrine) petitions for review f rom an order of the State
Civil Service Commission (Commission) that denied her request for a hearing under

Section s 951 (a) and (b) of the Civil Service Act (Act) , 71 P.S. §741.951(a) and (b). 1

She alleged Torrance State Hospital

, Department of H uman Services (Appointing
Authority)

, removed her from one location to another

, based on age , gender and other

non

- merit factors

. She a

rgue s the Commission erred in not holding a hearing on her

discrimination claim. Upon review

, we affirm in part, and we vacate and re mand in part

.

I. Background
During all relevant times, Mastrine served Appointing Authority in the
regular civil service as a licensed practical nurse (LPN) , at the same classification and
compensation level

. In February 2017, Appointing Authority moved her location.

1 Act of August 5, 1941, P.L. 752, as amended

, added by the A ct of August 27, 1963, P.L. 1257.2 Mastrine appeal ed he r assignment to a different location , alleging she

was “ removed from [ her post ] at Re nne r 4 to Greizman

. ” Certified Record (C.R.),
Item No. 1 (Appeal Request Form ). In addition to claim ing improper removal under
Section 951(a) of the Act, s he alleg ed discriminat ion based on age

, gender and other

non

- merit factors in violation of Section 905.1 of the Act

, 71 P.S. §741.9 05a

. 2

The Commission denied Mastrine’s hearing request

, stating, “[ t]here

[ was ] no indication that a removal action has occurred

... .” Comm ’ n Order

, 4/ 19 / 17.

A s to her “reassignment of duty

, ” i t stated “[s]uch ... is not a personnel action” subject

to appeal. Id. The order did not acknowledge Mastrine’s discrimination claim.

Mastrine filed a petition for review to this Court, challenging the

Commission’s order. After briefing, the matter is ready for disposition. 3

II. Discussion
On appeal, 4 Mastrine argues she set forth a valid discrimination claim.
Because Appointing Authority remov ed her from her post for non

- merit factors , she

asserts
, the Commission erred in denying her hearing request.

2 Added by the Ac t of August 27, 1963, P.L. 1257.

3 Appointing Authority did not file a brief or otherwise participate on appeal

.

4 Our “review is limited to determining whether an error of law was committed, whether constitutional rights were violated or whether necessary findings of fact are supported by substantial evidence.” Aurand v. State Civ il Serv. Comm’n (Dep’t of Envtl. Prot .) , 768 A.2d 353, 35 5 n.3 (Pa. Cmwlth. 2000).3 T he Commission respond s that no personnel action occurred to wa rran t
a hearing. It contends that whether she alleged “a valid discrimination claim is

irrelevant since [ Mastrine ] was never removed.” Resp’t’s Br. at 2.

This Court is presented with the narrow question of “whether, on the

basis of the st atements in the Appeal Request [ F ] orm, the Commission acted
properly in denying [ Mastrine ] a hearing.” Behm v. State Civ il Serv. Comm’n

, 494

A.2d 1166 , 116 7 (Pa. Cmwlth. 1985). Here, Mastrine appealed under both Section
951(a) of the Act, reserved for regular employ ees, and Section 951(b) of the Act,

which relates to discriminat ion claims

.

A. Section 951(a)

Under S ection 951(a) of the Act, a regular employee in the classified
service may request a hearing on any “ permanent separation , suspension for cause,
furlough or demotion on the grounds that such action has been taken in [ h er] case in
violation of the provisions of [the] [A]ct.” 71 P.S. §741.951(a) (emphasis added)

. The Act define s “removal” as “ the permanent separation from the classified service
of an employe who has been permanently appointed.” Section 3 (v) of the Act, 71
P.S. §741.3(v) (emphasis added); see also 4 Pa. Code §91.3 (definitions).

Here, Mastrine sought a hearing under S ection 951(a) of the Act
predicated on he r “ remov al” from her post

. C.R., Item No. 1. However, t he A ppeal

R equest F orm reflect s she s till work ed for Appointing Authority in the same capacity,

albeit at a nother location. Therefore , Mastrine did not allege a permanent separation
from Appointing Authority that justifie s a hearing under this provision. Behm

.4 Because Mastrine alleged no remov al as that term is defined in the Act

, the Commission did not err in den y i ng her hearing request under Section 951 (a) of

the Act.

B. Section 951(b)

“Section 951(b) of the Act provides for hearings for alleged violations
of [S]ection 905.1 of the Act, which prohibits discrimination only with respect to a personnel action .” Aurand v. State Civ il Serv. Comm’n (Dep’t of Envtl. Prot.) , 768

A.2d 3 53, 355

- 56 (Pa. Cmwlth. 2000) (emphasis added)

. S uch a hearing is non

discretionary. Myers v. Pa. Liquor Control Bd. , 403 A.2d 1061 , 1062 (Pa. Cmwlth.

1979) (“under the circumstances described in ... [ Section 951 (b)] [,] the employee is

entitled to a hearin g of right

.... ”)

.

Section 905.1 of the Act prohibits discrimination “ against any person
in recruitment, examination, appointment, training, promotion, retention or any other personnel action with respect to the classified service

... because of race,

nati onal origin or other non

- merit factors.” 71 P.S. §741.905a (emphasis added)

. Once an aggrieved employee appeals the alleged discrimination, “the [C]o m mission

shall promptly schedule and hold a public hearing.” Section 951(b) of the Act, 71

P.S. § 741.951 (b) (emphasis added).

1. Personnel Action

First, we examine the alleged discriminatory action Mastrine de scribed
in the Appeal Request Form

, and we assess whether it qualifies as a “ personnel

action .” Aurand , 768 A.2d at 3 55

- 5 6.5 As to the alleged perso nnel action, Mastrine asserted she “was remov ed

from Renner 4 [one building ] to Griezman[,]” another building within Appointing
Authority . C.R., Item No. 1 (Appeal Request Form, Part III). In essence,
Appointing Authority assigned her to serve as an LPN at another location.

Because Mastrine did not attach written notice of the alleged personnel

action

, the Commission sought documentation from Appointing Authority. See
Resp’t’s Br. at 3. Specifically, it requested “a copy of [Mastrine’s] removal letter.”

C.R., Item No. 2 (Email) (emphasis added) . Appointing Authority responded that

Mastrine “has not been removed , she is still employed with [Appointing Authority]

as a [n] LPN.” Id. (emphasis added).

Citing the doctrine of “official notice,” 5 t he Commission cons ulted its

files when reviewing Mastrine’s appeal. Resp’t’s Br. at 4. It confirmed that

Mastrine’s classification and compensation remained the same after the alleged
personnel action. C.R., Item No. 3. Based on its premise that no rem oval action
occurred, the Commission contends a hearing was not warranted. We disagree.

First and foremost, we reject the Commission’s premise that Mastrine’s
appeal was limited to a removal from classified service. That she used the term

“ removal ” doe s not alter the nature of the personnel action under review

. Rather,

5 “ Official notice ” is the administrative counterpart t o judicial notice. “ The doctrine allows an agency to take official notice of facts which are obvious and notorious to an expert in the
agency ’ s field and those facts contained in re ports and records in the agency’ s files, in addition to those facts which are obvious and notorious to the average person. ” Falasco v. Pa. Bd. of Prob. & Parole , 521 A.2d 991, 994 n.6 (Pa. Cmwlth. 1987).6

courts consider whether the action as described merits a hearing under the Act. See
Benson v. Dep’t of Envtl. Res. , 651 A.2d 1168 (Pa. Cmwlth. 1994).

A s descri bed in the A ppeal Request F orm, th e alleged discriminatory
personnel action was moving Mastrine from o ne post and plac ing her in another

. This action implicates a reassignment. Id.

Relevant here, the regulations enumerate reassignment among several
personnel actions. 4 Pa. Code §105.2. “Reassignment” is defined as “the movement
of an employe e from one position to another position in the same class or in a similar
class for which the employe e qualifies at the same maximum salary.” 4 Pa. Code
§91.3 (emphasis added). “ Position” is defined as “a group of current duties and
responsibilities assigned or delegated by competent authority requiring the full

- time

or part

- time employment of one person.” Id. ; see also Section 3 (f) of the Act, 71
P.S. §741.3(f).

Moreover , in its order, the Commission expressly recognized that
Mastrine’s “appeal also relate[d] to [her] reassignment of duty.” C.R., Item No. 4.
Accordingly, t he Commission’s argument in its brief that Mastrine neglected to
alleg e any personnel action other than a removal in her appeal is not well

- taken.

We also disagree with the Commission’s contention that “whether

[Mastrine] had set forth a valid discrimination claim is irrelevant since [she] was
never removed.” Resp’t’s Br. at 2. Because the Commission acknowledged

“ [Mastrine’s] reassignment of duty” in its order, it should have considered whether7

that reassignment was a personnel action that could serve as a basis for a

discrimination claim. C.R., Item No. 4.

Sign ificantly, the Commission did not a ddress whether th e reassignment
of duty qualified as a personnel action under the Act. “Personnel action” is a broader

term that includes several actions in addition to removal. See 4 Pa. Code §105.2.

Therefore , the Co mmission’s focus on the fact that no removal occurred , to the
exclusion of other personnel actions, was misplaced.

Applying the regulat ory definition here, the action Mastrine described
in the Appeal Request Form i ndi ca tes a reassignment. Mastrine was moved from
one position to another position in the same class, performing “sufficiently similar
... duties and responsibilities thereof that the same descriptive title may be used for
each of such positions

. ” Section 3(g) of the Act, 71 P.S. §741.3(g) (def ining
“class”). As a result , we c onclud e Mastrine sufficiently alleged 6 a personnel action

under the Act , so as to require further evaluation by the Commission

.

A reassignment is an appealable personnel action when it is the basis

for a discrimination c laim. See Carr v. Dep’ t of Pub. Welfare, Woodville State
Hosp. , 456 A.2d 240 (Pa. Cmwlth. 1983)

. However, from our review of the order,
it is not clear that the Commission evaluated the reassignment in the context of a

6 We are mindful that in the event Mastrine wa s moved to a newly created position

, the move may not constitute a reassignment

. See

, e.g. , Benson v. Dep’t of Envtl. Res. , 651 A.2d 1168 (Pa. Cmwlth. 1994) (reassignment does not occur when employee takes new p osition created during a reorganization)

. That is not clear on the record ; the Commission m a y explore that issue when it evaluates the hearing reques t under Section 951(b) of the Act, 71 P.S. §741.951(b)

.8

discrimination claim and a hearing request under Section 951 (b) of the Act. 7
Accordingly , in the interest of judicial efficiency, we turn to whether Mastrine’s
appeal triggered analysis under that provision.

2. Discrimination Claim

At a minimum, a n appeal under Section 951(b) of the Act must allege

a personnel action was discriminat ory in violation of Section 905.1 of the Act. See
71 P.S. §741.951(b). Pursuant to Commission regulations, an appeal alleging

discrimination must include “specific facts relat ing to discrimination.” 4 Pa. Code

§105.12(c) . The following specific facts should appear i n the appeal request form:

(1) The acts complained of.

(2) How the treatment differs from treatment of others similarly situated.

(3) When the acts occurred.

(4) When and how the appellant first became aware of the alleged discrimination.

Id. The Commission properly dism isses an appeal without a hearing based on an insufficient allegation of discrimination. Reck v. State Civ il Serv. Comm’n , 992
A.2d 977 (Pa. Cmwlth. 2010).

Significantly, here the Commission did not dismiss Mastrine’s hearing
request on that basis. In fact, the Commission represents in its brief that it “ never actually evaluated whether the discrimination claims were sufficient to warrant

7 When the Commission stated a reassignment was “n ot an appealable action,” it apparently did so under Section 951(a) of the Act, 71 P.S. §741.951(a). Certified Record, Item No. 4.9

holding a hearing. ” Resp’t’s Br. at 6 (emphasis added). Accordingly, the legal
sufficiency of Mastrine’s discrimination claim is not before us.

In reviewing the contents of the Appeal Request Form, the Commission
erred in not considering Mastrine’s hearing req uest under Section 951(b) of the Act.
Without opining as to the sufficiency of her claim under Commission regulations

, we discern that Mastrine used language that put the Commission on notice that she
sought a hearing based on alleged discrimination.

Fi rst, it is evident Mastrine sought a hearing based on discrimination

because she completed Part III of the Appeal Request Form, entitled “All
Persons/Employes Alleging Discrimination.” C.R., Item No. 1. Second, a s to the
type of discrimination, Mastrine checked four boxes that correspond ed to age, sex,
“violation of [the Act]/Rules” and other non

- merit factors. Id. Third, s he further

described her discrimination claim in an addendum as follows:

[Mastrine] alleged age discrimination. [Mastrine] is ove r the age of forty (40) and was removed from her position and replaced with someone wi th less education, experience and knowledge. Furthermore, [Mastrine] [was] discriminated against based on sex, i.e., being a female. In addition, [Mastrine] was removed for other non

- merit factors which are only known to [Appointing Authority] because she has had no type of relief or knowledge of any allegations.

Id. (Addendum). Thus , Mastrine identified four grounds for discrimination so as to
trigger review of her he aring request under Section 951(b) of the Act.10 F rom all appearances, the Commission did not consider the merit or the
sufficiency of Mastrine’s discrimination claim. Because the Commission
recognized the reassignment of duty in its order, and a reassignment is a personnel

action that, when based on non

- merit facts, may constitute grounds for a
discrimination claim, the Commission erred in neglec ting to consider the sufficiency

of Mastrine’s allegations before dismissing her appeal

.

A remand to an agency is appropriate to allow an agency to construe its
regulations in the first instance. See generally Manor v. Dep’t of Pub. Welfare , 796

A.2d 1 020 (Pa. Cmwlth. 2002) (remanding to agency to construe statement of
policy). Here, a remand would enable the Commission to assess the sufficiency of
Mastrine’s discrimination claim under 4 Pa. Code §105.12(c). Accordingly, we

remand to the Commission to consider the sufficiency , and, if necessary, merit, of

Mastrine’s hearing request on her discrimination claim. Craig v. State Civ il Serv.
Comm’n (Dep’t of Envtl. Prot.) , 800 A.2d 364 (Pa. Cmwlth. 2002 ) (remanding to
Commission to grant a hearing as to racial discrimination claim ).

III. Conclusion

From its order, it is not evident that the Commission considered
Mastrine’s hearing request under Section 951(b) of the Act.

B ecause Mastrine wa s no t remov ed from service, we affirm the

Commission’s order as to its denial of Mastrine’s hearing request under Section

951(a) of the Act. However, we vacate the Commission’s order as to its denial of a
hearing on Mastrine’s discrimination claim that relates to her reassignment of duty.11

Because the Commission did not appear to consider Mastrine’s hearing request

under Section 951(b) of the Act, we remand to the Commission to do so based on her reassignment of duty.

ROBERT SIMPSON, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Amy Mastrine, : Petitioner :

:

v. : No. 629 C.D. 2017

: State Civil Service Commission : (Torrance State Hospital, Department : of Human Services), : Respondent :

O R D E R

AND NOW , this 13 th day of April , 2018, the order of the State Civil

Service Commission is AFFIRMED IN PART

, and VACATED IN PART , and

this matter is REMANDED to allow the State Civil Service Commission to consider
the sufficiency, and if necessary, the merit of Petitioner ’s hearing request on her

discrimination claim under Section 951(b) of the Civil Service Act, 71 P.S. §741.951
(b). 8

Jurisdiction is relinquished.

ROBERT SIMPSON, Judge

8 Act of August 5, 1941, P.L. 752, as amended

, added by the A ct of August 27, 1963, P.L. 1257.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Amy Mastrine

, : Petitioner :

:

v. :

: State Civil Service Commission : (Torrance State Hospital, Department : of Human Services), : No. 629 C.D. 2017 Respondent : Submitted: December 22, 2017

BEFORE: HONORABLE ROBERT SIMPSON

, Judge

HONORABLE ANNE E. COVEY, Judge HONORABLE JAMES GARDNER COLINS

, Senior Judge

OPINION NOT REPORTED

CONCURRING/ DISSENTING OPINION BY JUDGE COVEY FILED: April 13, 2018

I agree with the Majority’s con clusion that because Amy Mastrine
(Mastrine) was not removed from service, the State Civil Service Commission ’s
(Commission) order den ying Mastrine’s hearing request under Section 951(a) of the
Civil Service Act (Act) 1 should be affirmed

. However, I respe ctfully dissent from the
Majority’s conclusion that the Commission erred by not holding a hearing on

Mastrine ’s discrimination claim under Section 951(b) of the Act

. 2 Because Mastrine 3
checked off “removal” on her State Civil Service Commission Appeal Req uest Form
(Appeal Request Form) as the basis for her unlawful discrimination, rather than
“reassignment,” as stated by the Majority, she was not entitled to a hearing.
Moreover, Mastrine, did not state a prima facie case of unlawful discrimination.

1 Act of August 5, 1941, P.L. 752, as amended, 71 P. S. § 741.951(a). Section 951 was added by Section 27 of the Act of August 27, 1963, P.L. 1257.

2 71 P.S. § 741.951(b)

. 3 Mastrine was and continues to be represented by counsel.AEC

- 2

Notab ly absent from Mastrine’s Appeal Request Form

, as well as the Majority’s

recitation of facts

, is that Mastrine was allegedly replace d by someone younger or a

male. Thus, I would affirm the Commission ’s order denying Mastrine’s hearing
request under Section 951(b) of the Act

.

The M ajority remands this matter for the Commission to consider

Mastrine’s discrimination claim on a basis not asserted in her Appeal Request Form,

nor stated in her Petition for Review or argued in her brief filed with this Court.

The Majority opines:
First and foremost, we reject the Commission’ s premise that Mastrine’ s appeal was limited to a removal from classified service. That she used the term ‘ removal ’ does not alter the nature of the personnel action under review. Rather, courts consider whether the action as described merits a hearing under the Act. See Benson v. Dep ’ t of Envtl. Res ., 651 A.2d 1168 (Pa. Cmwlth. 1994).

Majority Op. at 5

- 6. However, Benson is inapposite to the instant case because the
alleged discriminator y action in Benson was “non

- selection for promotion” which
does not appear on the Appeal Request Form. Id. at 1170 n.3. “Reassignment

, ” the
action the Majority would like to review in this matter, is in fact an option on the
Appeal Request Form

, but Mast rine chose not to select it . Further, in Benson, the
petitioner made it clear that his non

- selection was the alleged action upon which his

discrimination claim was based. Mastrine did not a ver nor did she argue that

reassignment was the alleged action up on which her discrimination claim was

founded

. 4

This Court has held: “On appeal we must determine whether, on the
basis of the statements in the Appeal Request [ F ] orm , the Commission acted

4 Notably, the Benson Court affirmed the Commission’s order granting the Department of Environmental Resources ’ petition for reconsideration and motion to dismiss petitioner’s appeal . In addition, although a hearin g was held in that matter, the C ourt never addresse d whether it was required.AEC

- 3

properly in denying [the a] ppellant a hearing.” Behm v. State Ci vil Serv

. Com m’ n,

494 A.2d 1166 , 1167 (Pa. Cmwlth. 1985) (emphasis added)

. Further,

it is evident that Section 905.1 [ of the Act 5 ] prohibits discrimination only with respect to a personnel action. Where there is no personnel action cognizable under the Act, there can be no discrimination over which the Commission has jurisdiction

. Not every occurrence is a personnel action

. See, e.g., Tempero v. [ Dep’t ] of [ Envtl

. ] Res [.]

, . . . 403 A.2d 226 ( [Pa. Cmwlth.] 1979) (loss of supervisory authority is not a personnel action ); O’ Peil v. State Civil Serv [.] [ Comm’n ]

, . . . 332 A.2d 879 ( [Pa. Cmwlth.] 1975) (failure to receive an increment where none was forthcoming under a compensation plan is not a personnel action and a change in a compensation plan is
not a personnel action ).

. . . Therefore, the Commission in examining the Appeal Request[ ]Form and then dismissing the appeal without a hearing committed no error.

Behm , 494 A.2d at 1168 (bold emphasis added). Moreover, p ursuant to Section

105.17 of the Com mission’s Regulations

, 6 Mastrine had the option of fil ing a Petition

for Reconsideration, wherein, she could have provided additional facts to support her
appeal. For example, Mastrine could have selected that she was unlawfully
discriminated against beca use she was “reassigned

, ” and supplied her basis therefor.

Instead , she filed a Petition for Review in this Court, wherein she argued nothing

more than she was removed when

, in fact

, she has been and is still employed in the
same position for the same amo unt of pay. 7

5 A dded by Section 25 of the Act of August 27, 1963, P.L.1257

, as amended, 71 P.S. § 741.905a (“ No officer or employe of the Commonwealth shall discriminate against any person in recruitment, examination, appointment, training, promotion, retention or any other personnel action . . . .”)

6 4 Pa.Code § 105.17

.

7 The Commission explained: As there was no disciplinary or removal letter attached to the appeal, the [ Commission ] sent an email, dated March 27, 2017 requesting a

copy of her removal letter. [Certified] Record [(C.R.)] Item B. In

res ponse, the [A] ppointing [[A] uthority stated, ‘ She has not been removed, she is still employed with Torrance State Hospital as an
LPN. ’ [C.R.] Item B. Additionally, [the Commission] performed aAEC

- 4 The Ma jority maintains: “[I] n its order, the Commission expres sly
recognized that Mastrine’s ‘ appeal also relate[d] to [her] reassignment of duty. ’

[Certified Record (C.R.) ] Item No. 4. Accordingly, the Commission’s argument

. . . that Ma strine neglected to allege any personnel action other than a removal in her
appeal is not well

- taken. ” Majority Op. at 6. However, a lthough the Commission

refer red to a “reassignment of duty” in its Order, Commission April 19, 2017 Order
(Order) at 1

, it is clear the Commission reviewed the appealed action as a removal

under both Sections 951(a) and 905.1 of the Act because Mastrine selected that

reason under both sections of her Appeal Request Form

. See R eproduced R ecord

at 2a

- 3a. This fact is especial ly evident here where the Commission expressly stated

that Mastrine’s reassignment of duty “was not a personnel action appealable under
the [Act] or rules.” Order at 1. Clearly

, the Commission was referring to Mastrine’s

“removal” and not her “reassignme nt ” as the M ajority concluded

. Moreover, b ecause

a removal letter was not attached to the A ppeal Request Form , the Commission
requested it from the Appointing Authority

, and the Appointing Authority confirmed

that Claimant had not been removed. The Commi ssion further checked Mastrine’s
work history in search of a removal , but again found none. Based thereon, Mastrine’s
appeal was properly denied.

routine check of [Mastrine’s] Commonwealth job history by

con sulting her personnel records using SAP, a program that is used by the Commission to verify employment status of appellants. [C.R.]
Item C. [The Commission] learned that [Mastrine’s] classification had not been changed by her [A] ppointing [A] uthority. O n March 20, 2017, the date the Civil Service received [Mastrine’s] appeal request, [Mastrine] was classified as an LPN and was receiving the same compensation for her services as she had been on March 15, 2017, the date she signed her appeal request. [ R ep roduced R ecord] Ex 2a and
3a. Commission Br. at 3

- 4.AEC

- 5 The Majority “ also disagree [s] with th e Commission’s contention that

‘ whether [Mastrine] had set forth a v alid discrimination claim is irrelevant since [she]

was never removed. ’ Resp’t’s Br. at 2. ” Majority Op. at 6

- 7. However, because
there was no cognizable personnel action at issue here, there can be “ no discrimination over which the Commission has juris diction ” and, thus, the
Commission did not err by dismissing the appeal without a hearing

. Behm

, 494 A.2d

. at 1186.
Notwithstanding, the Dissent cannot agree with the Majority’s

conclusion: “Mastrine identified the bases for discrimination [age and sex ] so as to
trigger review of her hearing request under Section 951(b) of t h e Act.” Majority Op.
at 9. As stated by the Majority:

Pursuant to Commission regulations, an appeal alleging discrimination must include ‘ specific facts relating to discrimination

. ’ 4 Pa. Code §105.12(c). The following specific facts should appear in the appeal request form:

(1) The acts complained of.

(2) How the treatment differs from treatment of others similarly situated.

(3) When the acts occurred.

(4) When and how the appel lant first became aware of the alleged discrimination.

Id. The Commission properly dismisses an appeal without a hearing based on an insufficient allegation of discrimination.

Majority Op. at 8. Here, none of the above

- stated factors appear in Mastrine ’ s Appeal Request Form. I n her addendum, as noted by the Majority, Mastrine alleges
she was “replaced with someone with less education, experience and knowledge.”

C.R., Item No. 1 , addendum. However, Mastrine does not allege that she was
replaced by some one younger than her or that she was replaced by a male. MoreAEC

- 6

importantly, Mastrine does not allege how her treatment differed from others
similarly situated. As such, Mastrine has not sufficiently alleged discrimination.
Accordingly, t he Commission pro perly dismissed the appeal without a hearing.

Moreover, the law is well

- settled : An appellate court may not sua sponte address an issue not raised by counsel , because it deprives counsel of the right to brief and argue the issues and it also deprives th e court of the benefit of counsel ’ s advocacy. Wiegand v. Wiegand,

. . . 337 A.2d 256 ([Pa.] 1975)

.
Thus [,] our Supreme Court has rightly declared that the judiciary should not ambush legal counsel by raising new issues as a basis for deciding a case. Usu rping the role of counsel in that manner is forbidden even if counsel is forewarned and given an opportunity to address the new point on remand.

Russell Minerals Fayette, Inc. v. Zoning Hearing Bd. of Fayette Cnty., 634 A.2d 836,
838 n.1 (Pa. Cmwlth. 1993 ). Here, the Commission argued:

As it was apparent from her job history that [Mastrine] had not been removed by the [A] ppointing [A] uthority, as she alleged in her appeal, [the Commission] issued an [o] rder dated April 19, 2017, denying her request for a n appeal hearing to review [Mastrine’s] alleged removal because

‘ There is no indication that a removal has occurred as defined by the Civil Service Act and Rules. ’ R.R. Ex. 4a. [T he Commission] did not commit any error of law by denying [Mastrine’s] requ est for a hearing on this basis

.

C ommission B r. at 5 (emphasis added). As Mastrine did not a ssert any other basis

, the Commission did not brief or argue any other issues. Specifically, the

Commission did not a ddress the issue raised by the Majority, i.e. , that Mastrine was
“reassigned,” because Mastrine did not raise that issue.

Finally, the Majority opine s : “[T]he Commission erred in not
considering Mastrine’s hearing request under Section 951(b) of the Act.” Majority
Op. at 9. However, the Commissi on addressed both Mastrine’s Section 951(a) claimAEC

- 7

as well as her Section 951(b) claim (discrimination claim) as evidenced by its Order,
wherein, it explain ed : it “reviewed all information presented by [Mastrine] on the
Appeal Request Form and any attachmen ts or additional documents.” Order at 1
(emphasis added). As Mastrine checked off removal as the alleged action from which
she was appealing under both sections of her Appeal Request Form and she was not

removed , there is no appealable personnel action u nder either section. Thus, the
Commission was permitted to dismiss her appeal without a hearing and without any

further review. See Behm, 494 A.2d at 1168 (“Where there is no personnel action
cognizable under the Act, there can be no discrimination over w hich the Commission
has jurisdiction.”)

. Accordingly, because “the Commission in examining the Appeal
Request[] Form and then dismissing the appeal without a hearing committed no
error[,]” a remand is not warranted. Id.

Moreover , there is no doubt that the Commission reviewed the Section

95 1 (b) of the Act cla i m within the context of a “ personnel action ” as evidenced by its
further argument:

[The Commission] cannot hold hearings for claims of discrimination in a vacuum; they must be raised in conjunction with a challenge to a bona fide and appealable personnel action. 71 P.S. §§ 741.951(b) [,] 741.905a

. Since [Mastrine] was not removed, the arguments she raises concerning the validity of her discrimination claims are irrelevant to the proper disposition of her petition for review by this Court.

Commission Br. at 6 (emphasis added)

. Again, the Commission addressed the only

issue Mastrine raised. The Majority was precluded from raising additional issues on

its own. Because it is not within this Court’s p rovince to advocate for p etitioners, I

w ould affirm the C ommission’s order denying Mastrine’s hearing request under

Section 951(b) of the Act.

___________________________ ANNE E. COVEY, Judge