           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 from an order of the State
Civil Service Commission (Commission) that denied her request for a hearing under
Sections 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 Human Services (Appointing
Authority), removed her from one location to another, based on age, gender and other
non-merit factors. She argues the Commission erred in not holding a hearing on her
discrimination claim. Upon review, we affirm in part, and we vacate and remand 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 Act of August 27, 1963, P.L. 1257.
                Mastrine appealed her assignment to a different location, alleging she
was “removed from [her post] at Renner 4 to Greizman.” Certified Record (C.R.),
Item No. 1 (Appeal Request Form). In addition to claiming improper removal under
Section 951(a) of the Act, she alleged discrimination based on age, gender and other
non-merit factors in violation of Section 905.1 of the Act, 71 P.S. §741.905a.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.
As to her “reassignment of duty,” it 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 removed her from her post for non-merit factors, she
asserts, the Commission erred in denying her hearing request.




       2
           Added by the Act 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 Civil Serv. Comm’n (Dep’t of Envtl. Prot.), 768 A.2d 353,
355 n.3 (Pa. Cmwlth. 2000).

                                                  2
             The Commission responds that no personnel action occurred to warrant
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 statements in the Appeal Request [F]orm, the Commission acted
properly in denying [Mastrine] a hearing.” Behm v. State Civil Serv. Comm’n, 494
A.2d 1166, 1167 (Pa. Cmwlth. 1985). Here, Mastrine appealed under both Section
951(a) of the Act, reserved for regular employees, and Section 951(b) of the Act,
which relates to discrimination claims.


                                  A. Section 951(a)
             Under Section 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 [her] case in
violation of the provisions of [the] [A]ct.” 71 P.S. §741.951(a) (emphasis added).
The Act defines “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 Section 951(a) of the Act
predicated on her “removal” from her post. C.R., Item No. 1. However, the Appeal
Request Form reflects she still worked for Appointing Authority in the same capacity,
albeit at another location. Therefore, Mastrine did not allege a permanent separation
from Appointing Authority that justifies a hearing under this provision. Behm.



                                          3
             Because Mastrine alleged no removal as that term is defined in the Act,
the Commission did not err in denying 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 Civil Serv. Comm’n (Dep’t of Envtl. Prot.), 768
A.2d 353, 355-56 (Pa. Cmwlth. 2000) (emphasis added). Such 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 hearing 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,
national origin or other non-merit factors.” 71 P.S. §741.905a (emphasis added).
Once an aggrieved employee appeals the alleged discrimination, “the [C]ommission
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 described
in the Appeal Request Form, and we assess whether it qualifies as a “personnel
action.” Aurand, 768 A.2d at 355-56.



                                         4
               As to the alleged personnel action, Mastrine asserted she “was removed
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 the Commission consulted 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 removal 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” does not alter the nature of the personnel action under review. Rather,



       5
         “Official notice” is the administrative counterpart to 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 reports 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).

                                                 5
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).


             As described in the Appeal Request Form, the alleged discriminatory
personnel action was moving Mastrine from one post and placing 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 employee from one position to another position in the same class or in a similar
class for which the employee 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, the Commission’s argument in its brief that Mastrine neglected to
allege 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 whether



                                          6
that reassignment was a personnel action that could serve as a basis for a
discrimination claim. C.R., Item No. 4.


              Significantly, the Commission did not address whether the 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 Commission’s focus on the fact that no removal occurred, to the
exclusion of other personnel actions, was misplaced.


              Applying the regulatory definition here, the action Mastrine described
in the Appeal Request Form indicates 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) (defining
“class”). As a result, we conclude Mastrine sufficiently alleged6 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 claim. 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 was 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 position created during
a reorganization). That is not clear on the record; the Commission may explore that issue when it
evaluates the hearing request under Section 951(b) of the Act, 71 P.S. §741.951(b).



                                               7
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, an appeal under Section 951(b) of the Act must allege
a personnel action was discriminatory 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 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 appellant first became aware of the
                 alleged discrimination.

Id. The Commission properly dismisses an appeal without a hearing based on an
insufficient allegation of discrimination. Reck v. State Civil 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 “not 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.

                                               8
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 request 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.


             First, 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, as to the
type of discrimination, Mastrine checked four boxes that corresponded to age, sex,
“violation of [the Act]/Rules” and other non-merit factors. Id. Third, she further
described her discrimination claim in an addendum as follows:

             [Mastrine] alleged age discrimination. [Mastrine] is over the
             age of forty (40) and was removed from her position and
             replaced with someone with 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 hearing request under Section 951(b) of the Act.




                                          9
             From 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 neglecting 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 1020 (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 Civil 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.


             Because Mastrine was not removed 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.



                                         10
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, Judge




                                     11
             IN 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                :

                                               ORDER

                  AND NOW, this 13th 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 Act 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 conclusion that because Amy Mastrine
(Mastrine) was not removed from service, the State Civil Service Commission’s
(Commission) order denying Mastrine’s hearing request under Section 951(a) of the
Civil Service Act (Act)1 should be affirmed. However, I respectfully 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 Mastrine3
checked off “removal” on her State Civil Service Commission Appeal Request 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.
Notably absent from Mastrine’s Appeal Request Form, as well as the Majority’s
recitation of facts, is that Mastrine was allegedly replaced 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 Majority 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 discriminatory 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 Mastrine 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 aver nor did she argue that
reassignment was the alleged action upon 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 hearing was held in that matter, the Court never addressed whether it was
required.
                                            AEC - 2
properly in denying [the a]ppellant a hearing.” Behm v. State Civil Serv. Comm’n,
494 A.2d 1166, 1167 (Pa. Cmwlth. 1985) (emphasis added). Further,

              it is evident that Section 905.1 [of the Act5] 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, pursuant to Section
105.17 of the Commission’s Regulations,6 Mastrine had the option of filing 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 because 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 amount of pay.7

       5
            Added 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
                  response, 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 a
                                            AEC - 3
              The Majority maintains: “[I]n its order, the Commission expressly
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 Mastrine neglected to allege any personnel action other than a removal in her
appeal is not well-taken.” Majority Op. at 6. However, although the Commission
referred 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 Reproduced Record
at 2a-3a. This fact is especially 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 “reassignment” as the Majority concluded. Moreover, because
a removal letter was not attached to the Appeal Request Form, the Commission
requested it from the Appointing Authority, and the Appointing Authority confirmed
that Claimant had not been removed. The Commission 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
            consulting 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. On 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. [Reproduced Record] Ex 2a and
            3a.
Commission Br. at 3-4.

                                           AEC - 4
             The Majority “also disagree[s] 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.” 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 jurisdiction” 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 the 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 appellant 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. In 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 someone younger than her or that she was replaced by a male. More

                                       AEC - 5
importantly, Mastrine does not allege how her treatment differed from others
similarly situated. As such, Mastrine has not sufficiently alleged discrimination.
Accordingly, the Commission properly 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 the 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. Usurping 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 an 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.
             [The Commission] did not commit any error of law by
             denying [Mastrine’s] request for a hearing on this basis.

Commission Br. at 5 (emphasis added). As Mastrine did not assert any other basis,
the Commission did not brief or argue any other issues.               Specifically, the
Commission did not address the issue raised by the Majority, i.e., that Mastrine was
“reassigned,” because Mastrine did not raise that issue.
             Finally, the Majority opines: “[T]he Commission erred in not
considering Mastrine’s hearing request under Section 951(b) of the Act.” Majority
Op. at 9. However, the Commission addressed both Mastrine’s Section 951(a) claim

                                       AEC - 6
as well as her Section 951(b) claim (discrimination claim) as evidenced by its Order,
wherein, it explained: it “reviewed all information presented by [Mastrine] on the
Appeal Request Form and any attachments 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 under 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 which 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
951(b) of the Act claim 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 province to advocate for petitioners, I
would affirm the Commission’s order denying Mastrine’s hearing request under
Section 951(b) of the Act.
                                       ___________________________
                                       ANNE E. COVEY, Judge
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