IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sean M. Donahue, :
Petitioner :
:
v. :
:
Office of Administration and :
PA Department of Human Services, : No. 295 M.D. 2021
Respondents : Submitted: April 1, 2022
OPINION NOT REPORTED
MEMORANDUM OPINION
PER CURIAM FILED: June 3, 2022
Sean M. Donahue (Donahue), proceeding pro se, petitions for review
of the August 19, 2021 order of the State Civil Service Commission (Commission)
that granted the Office of Administration’s (OA) motion to dismiss his appeal as
moot in light of this Court’s decision in Donahue v. State Civil Service Commission
(Department of Human Services) (Pa. Cmwlth., No. 296 C.D. 2020, filed April 22,
2021) (April 2021 Donahue Decision). Upon review, we affirm, albeit on different
grounds.1
1
“This Court may affirm on grounds different than those relied upon by the court or agency
below if such grounds for affirmance exist.” Smart Commc’ns Holding, Inc. v. Wishnefsky, 240
A.3d 1014, 1016 n.2 (Pa. Cmwlth. 2020) (quoting Motor Coils MFG/WABTEC v. Workers’ Comp.
Appeal Bd. (Bish), 853 A.2d 1082, 1087 n.9 (Pa. Cmwlth. 2004) (brackets omitted)).
I. Background
The basic facts and procedural posture underlying this matter are not in
dispute and are summarized as follows.2
Prior to the events giving rise to the instant matter, in July of 2018,
Donahue applied to fill a posted Income Maintenance Caseworker position within
the Department of Human Services (Department), Lackawanna County Assistance
Office (July 2018 position), which job listing included a hiring preference for
eligible candidates residing in Lackawanna County. The OA ruled Donahue
ineligible for the July 2018 position, which determination Donahue appealed to the
Commission in August 2018 (Appeal No. 30012), alleging, inter alia, that he had
been discriminated against based on the Department’s application of county
preference3 and veterans’ preference4 in hiring practices. The Commission
2
We note that this Court has previously set forth the facts and procedural history of this
matter at length multiple times in Donahue v. Pennsylvania Governor’s Office of Administration
(Pa. Cmwlth., No. 518 M.D. 2020, filed January 15, 2021) (January 2021 Donahue Decision), and
more recently in Donahue v. Office of Administration and PA Department of Human Services (Pa.
Cmwlth., No 295 M.D. 2021, filed November 30, 2021) (November 2021 Donahue Decision).
3
“County preference” refers to Section 2301(b) of what is commonly known as the Civil
Service Reform Act, which provides, in pertinent part:
An individual applying for a position or promotion in the classified
service shall be a resident of this Commonwealth or former resident
of this Commonwealth who meets the requirements of this
subsection and, if applicable, of the district.
71 Pa.C.S. § 2301(b)(1). The General Assembly repealed the former Civil Service Act, Act of
August 5, 1941, P.L. 752, as amended, formerly 71 P.S. §§ 741.1-741.1005, by the Act of June
28, 2018, P.L. 460, effective March 28, 2019. The subject matter of various provisions of the
former Civil Service Act may be found in Title 71, Part III of the Pennsylvania Consolidated
Statutes, relating to Civil Service Reform.
4
“Veterans’ preference” refers to Section 7104 of what is commonly referred to as the
Veterans’ Preference Act, which provides, in pertinent part:
2
conducted an appeal hearing and issued an adjudication and order on February 21,
2020, wherein the Commission dismissed Appeal No. 30012 because Donahue was
not a resident of Lackawanna County. Donahue appealed the Commission’s
adjudication and order to this Court. OA filed an application for relief in the nature
of a motion to quash, or, alternatively, preliminary objections.
During the time he was prosecuting his challenge to his eligibility for
the July 2018 position in Appeal No. 30012, on November 7, 2019, Donahue applied
to fill a different Income Maintenance Caseworker position within the Lackawanna
County Assistance Office (November 2019 position),5 which job listing also
included a hiring preference for eligible candidates residing in Lackawanna County.
The November 2019 position forms the basis of the instant litigation and opinion.
On November 13, 2019, OA informed Donahue that, because he was
not a Lackawanna County resident, he would not be referred to the Department for
the November 2019 position. On November 27, 2019, Donahue appealed this
determination to the Commission (Appeal No. 30425), again alleging discrimination
based on the application of county preference and veterans’ preference points to be
applied in hiring practices.
On January 15, 2020, the Commission granted Donahue an appeal
hearing in Appeal No. 30425 to determine the issues of his eligibility for the
Whenever a veteran possesses the requisite qualifications for
appointment to a public position that is not subject to civil service
appointment examination and the veteran is otherwise eligible for
appointment, the appointing authority in making the appointment
shall give preference to the veteran.
51 Pa.C.S. § 7104(a).
5
Job Number R-2019-58384-447720.
3
caseworker position and the alleged denial of Donahue’s purported veterans’
preference for the caseworker position. Originally scheduled for May 27, 2020, the
Commission continued this appeal hearing indefinitely when the COVID-19
pandemic began in March of 2020.
On August 13, 2020, the Commission notified the parties to Appeal No.
30425 of its plan to begin scheduling appeal hearings via Skype video conference.
Donahue requested a status update regarding subpoena requests he had previously
submitted in this matter. On August 13, 2020, Donahue proposed to the Commission
that the parties stipulate as to the issues in Appeal No. 30425. He also requested that
the Commission file a declaratory judgment action in the Court of Common Pleas of
Lackawanna County for the purpose of securing a declaration that the Department
and OA may not impose county preference over veterans’ preference in hiring for
any state civil service jobs. Donahue also filed a single motion that sought both
declaratory judgment and interlocutory appeal with the Commission, which
Donahue titled a “Motion for [the Commission] to Seek Declaratory Judgment” and
a “Motion for Interlocutory Appeal” (Dual Motion). OA submitted objections to
Donahue’s subpoena requests on August 20, 2020, and filed a response with the
Commission on August 24, 2020, that addressed Donahue’s various requests and
motions regarding Appeal No. 30425. On August 31, 2020, the Commission issued
an order denying the Dual Motion. Donahue appealed to this Court.
In the meantime, in a memorandum opinion dated April 22, 2021, this
Court granted OA’s motion to quash the appellate portion of Donahue’s petition for
review and also sustained OA’s preliminary objections and dismissed the original
jurisdiction portion of the petition for review in Donahue’s case involving Appeal
No. 30012. See April 2021 Donahue Decision. This Court specifically held in the
4
April 2021 Donahue Decision that “the use of county residence restrictions in hiring
is authorized by the former Civil Service Act and the Commission’s regulations.”
See id., slip op. at 13.
Thereafter, the Commission rescheduled the appeal hearing on Appeal
No. 30425 for August 21, 2021. OA, as it had in Appeal No. 30012, again filed with
the Commission a motion to quash, or, alternatively, preliminary objections with the
Commission, this time based on this Court’s April 2021 Donahue Decision. In its
motion, OA argued that Appeal No. 30012 had presented the same residency-based
eligibility claims that Donahue was forwarding in the instant matter, Appeal No.
30425.
On August 19, 2021, the Commission granted OA’s motion to quash.6
See November 2021 Donahue Decision, slip op. at 6. In granting OA’s motion, the
Commission concluded that Donahue’s arguments in the instant matter were moot
in light of the April 2021 Donahue Decision, which the Commission determined
involved appellate claims identical to those presented in this instant matter, although
in relation to a different Income Maintenance Caseworker position. On September
4, 2021, Donahue timely appealed to this Court.7
Donahue had filed extensive objections to OA’s motion to dismiss on July 30, 2021. See
6
November 2021 Donahue Decision, slip op. at 6; see also Appellant’s Objection to OA’s July 29,
2020 Motion to Dismiss.
7
Donahue timely appealed the Commission’s August 19, 2021 order granting OA’s motion
to dismiss by filing a dual jurisdiction petition for review entitled “Appeal from [Commission]
Decision at [Commission] AP 30425 and Request for Declaratory Judgement.” In response to
Donahue’s filing, on October 1, 2021, OA filed an application entitled “Application for Relief in
the Nature of a Motion to Quash or, Alternatively, Preliminary Objections” (Application for
Relief). This Court decided the Application for Relief in the November 2021 Donahue Decision,
which sustained OA’s preliminary objections and dismissed Donahue’s request for declaratory
relief in this Court’s original jurisdiction, but denied OA’s motion to quash Donahue’s appeal of
the Commission’s August 19, 2021 order. See November 2021 Donahue Decision, slip op. at 9 &
Order. We address Donahue’s outstanding appellate claims herein.
5
II. Analysis
On appeal,8 Donahue claims that the Commission committed an error
of law by dismissing his appeal. See Donahue’s Brief at 5-11. Essentially, Donahue
claims that the use of county preference in civil service hiring determinations
discriminates against all Pennsylvanians who do not reside in the preferred county.
See id. Both OA and the Commission respond that this matter is moot pursuant to
this Court’s April 2021 Donahue Decision.9 OA also argues that the doctrine of
collateral estoppel bars Donahue’s claims in the instant matter.10
Initially, we do not agree with the Commission or OA that the principle
of mootness applies to the instant matter. We observe that, as a general rule, an
actual case or controversy must exist at all stages of the judicial process or a case
will be dismissed as moot. In re Gross, 382 A.2d 116, 119 (Pa. 1978). Cases that
present an issue of mootness involve litigants that had standing to sue at the outset
of the litigation but, after the lawsuit has gotten underway, changes in the facts or in
the law occur that may deprive the litigant of the necessary stake in the outcome. Id.
If a change in facts or law renders it impossible for the court to grant relief, then the
question is moot. Id. at 120.
We acknowledge that the appeal considered in the April 2021 Donahue
Decision – Appeal No. 30012 – and the instant matter – Appeal No. 30425 – concern
8
We review the Commission’s decision to determine whether constitutional rights have
been violated, whether an error of law has been committed, or whether the Commission’s factual
findings are supported by substantial evidence. Williams v. State Civ. Serv. Comm’n, 811 A.2d
1090, 1092 n.1 (Pa. Cmwlth. 2002).
9
See OA’s Brief at 9-12; Commission’s Brief at 9-15.
10
See OA’s Brief at 12-14.
6
identical claims regarding the application of county preference versus veterans’
preference in relation to exceptionally similar factual scenarios. Despite the fact that
the jobs involved in each case appear to be for effectively the same job description
sought to be filled at different times, the listings are not for the same position. Each
listing, and therefore each appeal, involves a separate, distinct job opportunity.
Additionally, like all applicants for posted civil service job openings, Donahue
maintains the option to challenge, on the basis of discrimination, his non-selection
to positions for which he applies. See Price v. Luzerne/Wyoming Cntys. Area Agency
on Aging, 672 A.2d 409, 413 (Pa. Cmwlth. 1996); see also Section 905.1 of the
former Civil Service Act.11 While it may illustrate the likely outcome of making
nearly identical claims in almost identical circumstances, the April 2021 Donahue
Decision does not render such claims moot or otherwise eliminate Donahue’s right
to challenge his non-appointment to positions in the civil service for allegedly
discriminatory behavior. Otherwise stated, the likely futility of Donahue’s
discrimination claim regarding Appeal No. 30425 does not extinguish Donahue’s
right to bring it. Accordingly, the Commission erred by granting OA’s motion to
dismiss Appeal No. 30425 on the basis of mootness.
11
Added by the Act of August 27, 1963, P.L. 1257, formerly 71 P.S. § 741.905a. Section
905.1 of the former Civil Service Act provided:
No officer or employe of the Commonwealth shall discriminate
against any person in recruitment, examination, appointment,
training, promotion, retention or any other personnel action with
respect to the classified service because of political or religious
opinions or affiliations[,] because of labor union affiliations[,] or
because of race, national origin[,] or other non-merit factors.
Id. Section 951(b) provided that any person who was aggrieved by an alleged violation of Section
905.1 could appeal in writing to the Commission within 20 calendar days of the alleged violation.
Formerly 71 P.S. § 741.951(b).
7
While not moot, however, Donahue’s claim that the county preference
employed in the selection process for the caseworker position for which Donahue
applied violates veterans’ preference is subject to collateral estoppel, also known as
issue preclusion. The doctrine of collateral estoppel precludes relitigation of an issue
where: (1) the identical issue was decided in a previous matter; (2) there was a final
judgment on the merits in the previous matter; (3) the party to be estopped was a
party to the previous matter, or in privity with a party to the previous matter; and (4)
the party to be estopped had a full and fair opportunity to litigate the issue and
question in the previous matter. Belote v. State Harness Racing Comm’n, 688 A.2d
264, 267 (Pa. Cmwlth. 1997).
Here, the elements of collateral estoppel have been met in relation to
Donahue’s claim in Appeal No. 30425 that he was discriminated against by the
application of county preference over veterans’ preference in the selection process
for the caseworker position for which he applied. The Commission addressed the
exact same claim in its determination of Appeal No. 30012, namely whether the
application of county preference offends veterans’ preference in the civil service
hiring process. Donahue was a party to Appeal No. 30012 and had a full and fair
opportunity to litigate the issue, which he did at a full appeal hearing. The
Commission issued a final determination on the merits of the issue, which this Court
upheld, specifically finding that the use of county preference to compile certified
lists of eligible candidates from which to select civil service hires for posted
positions was appropriate and did not conflict with veterans’ preference. See April
2021 Donahue Decision, slip op. at 7-10 & 13. Accordingly, as all requirements for
8
collateral estoppel have been satisfied, Donahue is estopped from relitigating the
same issue in the instant matter.12
III. Conclusion
Because Donahue is estopped from relitigating his claims challenging
the use of county preference in the hiring process related to Appeal No. 30425, we
affirm the Commission’s August 19, 2021 order.13
12
We further note that, even if not estopped, Donahue’s claim would fail for the same
reasons enunciated by this Court in the April 2021 Donahue Decision. See April 2021 Donahue
Decision, slip op. at 7-10 & 13.
13
Outside of the issues precluded by collateral estoppel, we acknowledge that Donahue
also claims that he should have been appointed counsel to represent him in this matter. See
Donahue’s Brief at 6. However, Donahue points to no provision of the Civil Service Act that
provides for the appointment of counsel to pro se litigants, and this Court has found none.
Accordingly, this claim is without merit.
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sean M. Donahue, :
Petitioner :
:
v. :
:
Office of Administration and :
PA Department of Human Services, : No. 295 M.D. 2021
Respondents :
PER CURIAM
ORDER
AND NOW, this 3rd day of June, 2022, the August 19, 2021 order of
the State Civil Service Commission is AFFIRMED.