         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Vincent Jakes,                      :
                  Petitioner        :
                                    :
            v.                      : No. 1055 C.D. 2016
                                    : Submitted: January 20, 2017
State Civil Service Commission      :
(Torrance State Hospital,           :
Department of Human Services),      :
                    Respondent      :


BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE JULIA K. HEARTHWAY, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                          FILED: February 15, 2017


            This is a petition for review by Vincent Jakes (Jakes) from a State
Civil Service Commission (Commission) order denying him a hearing from a
personnel action that Jakes characterized as a demotion from his position at
Torrance State Hospital, Department of Human Services (Employer).           The
Commission denied Jakes a hearing because it believed that he had not been
demoted because his Civil Service Classification had not changed.      For the
following reasons, we vacate and remand.


            Jakes filed an appeal with the Commission alleging that he had been
demoted from his position in the Sexual Treatment Program to “Dietary.”
(Reproduced Record (R.R.) at 4a.)             On the appeal form, he checked boxes
indicating that he was appealing a demotion and provided a narrative claiming the
reason that he was demoted was a result of racial discrimination. The narrative
stated:

                Discrimination on the basis of race and other non-merit
                factors. On April 29, 2016, the Appellant was accused of
                sleeping at 4:30AM on his shift by a resident. A Pre-
                Disciplinary Conference was held on May 4, 2016,
                wherein the Appellant was demoted from his position in
                the Sexual Responsibility Treatment Program to Dietary.
                There was no evidence presented against him other than
                the alleged evidence of a resident patient. The Appellant
                has been with Torrance State Hospital since 2001. He
                was moved to the Sexual Responsibility Treatment
                Program in 2006, and had been at that post for the last ten
                years without incident until this current demotion. The
                Appellant’s long-term tenure in the Sexual Responsibility
                Treatment Program without incident and then to be
                demoted for an alleged sleeping incident witnessed by a
                resident is incongruent.


(R.R. at 4a.)


                The Commission then issued an order which stated, in relevant part:

                The appeal relates to Vincent Jakes’ demotion from
                Sexual Responsibility and Treatment Program Aide,
                regular status, with the Torrance State Hospital,
                Department of Human Services. There is no indication
                that a demotion has occurred as defined by the Civil
                Service Act and Rules.[1] Accordingly, the request for
       1
         Section 3(16)(r) of the Civil Service Act, Act of August 5, 1941, P.L. 752, as amended,
71 P.S. § 741.3(16)(r), states that:
(Footnote continued on next page…)
                                               2
              hearing is denied as there is no personnel action to
              review.


(R.R. at 4a) (footnote added).


              In its brief to this Court, the Commission states that from Jakes’
“perspective, he probably feels he has been demoted [because he was sent to work
in a different program area],” (Brief for Respondent at 5), but the basis for its order
is that it reviewed Jakes’ personnel record which indicated that his employment
status had not changed and that he had not been demoted.


              On appeal, Jakes contends that the Commission erred in not granting a
hearing because his complaint alleged that race and other non-merit factors were
the true cause of his demotion. We do not disagree that he contends that his
demotion was the result of racial discrimination, but that was not the basis for the
Commission’s decision that he has not been demoted.


              We agree with the Commission that if Jakes had not been demoted,
then he would not have a right to appeal on that basis. However, the personnel
records that the Commission bases its order on are not part of the record. While an


(continued…)


              (r) “Demotion” means the voluntary or involuntary movement of
              an employee to a class assigned to a pay range with a lower
              maximum salary.

See also 4 Pa. Code § 91.3.


                                           3
administrative agency may take official notice of facts which are contained in
reports and records in the agency’s files, Falasco v. Pennsylvania Board of
Probation and Parole, 521 A.2d 991, 994 n.6 (Pa. Cmwlth. 1987), that does not
mean that they should not be part of the record so they can be reviewed by the
court on appeal to ensure that they say what an agency says they say.


            Accordingly, we vacate the Commission’s order and remand this
matter to the Commission to enter into the record the personnel records that
establish that Jakes had not been demoted.



                                ____________________________________
                                DAN PELLEGRINI, Senior Judge




                                         4
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Vincent Jakes,                         :
                   Petitioner          :
                                       :
             v.                        : No. 1055 C.D. 2016
                                       :
State Civil Service Commission         :
(Torrance State Hospital,              :
Department of Human Services),         :
                    Respondent         :




                                       ORDER


             AND NOW, this 15th day of February, 2017, the State Civil Service
Commission’s Order of June 15, 2016, in the above-captioned matter is vacated.
This matter is remanded to the Respondent to provide Petitioner with the personnel
record(s) establishing that he was not demoted. Petitioner shall have twenty days
from receipt of said records to respond in writing to Respondent.              After
Respondent receives Petitioner’s response, or if after twenty days no response is
received, Respondent is to issue a new order and transmit that order to this Court.


             Jurisdiction retained.



                                 ____________________________________
                                 DAN PELLEGRINI, Senior Judge
