dissenting.
I respectfully dissent. I do not believe that there are any material factual disputes at issue, but only the appropriate interpretation of 348 Pa.Code § 1.10-1005 under somewhat unusual circumstances. That section of the Code provides, in pertinent part:
(a) Functions. The Personnel Appeals Board shall hear appeals—
*1220(1) by any member of the career service from any decision resulting in denial of qualification, eligibility, or promotion or resulting in transfer, demotion, suspension, dismissal, or disciplinary action...;
(3) by any individual, other than a member of the exempt service, from any decision of the agency responsible for the administration of the merit personnel system resulting in denial of qualification, eligibility, or appointment in the career service.
Under the theory stated in Mr. Houck’s complaint, when he became a member of the Exempt Service, he took an extended leave of absence from his position in the Career Service, with a specific written guarantee, based upon the County’s Personnel and Procedures Manual, that he could return to his Career Service position at the conclusion of his tenure in the Exempt Service. The basis for the claim stated in his complaint was that he retained certain rights while on leave from the Career Service, specifically a right to reinstatement when his Exempt Service ended. Since the underlying right he asserted in his complaint was based upon his status as an employee on leave from the Career Service, and involved the interpretation and/or enforcement of terms both negotiated when he was an active member of the career service and also controlled by written policies applicable to Career Service employees on leave, I believe that subsection (a)(1) is applicable to the present case, rather than subsection (a)(3).1 Thus I believe that the Personnel Appeals Board had jurisdiction over this matter and that Common Pleas properly granted summary judgment for failure to pursue administrative remedies.
Accordingly, I would affirm the Court, of Common Pleas.
. This would be my interpretation even if I were to conclude that he continued to be a “member” of the Exempt Service while exhausting unused vacation time after his termination (which I believe is a legal rather than a factual determination.)