Appeal of Colban
| Decision Date | 26 March 1981 |
| Citation | 58 Pa.Cmwlth. 104,427 A.2d 313 |
| Parties | In re Appeal of Betty COLBAN. Appeal of Betty COLBAN. |
| Court | Pennsylvania Commonwealth Court |
David J. Brightbill, Siegrist, Koller, Brightbill & Long, Lebanon, for appellant.
John Kelsey, III, Lebanon, for appellee.
Before MENCER, ROGERS and CRAIG, JJ.
The appellant, Betty Colban, was dismissed from her employment at the Life Support Facility operated by the Lebanon County Mental Health/Mental Retardation Program on the grounds of Cedar Haven, the Lebanon County Home. Colban was a county employee. Shortly after she was employed on May 11, 1976, she was supplied with the Cedar Haven Employee Handbook and told that the Handbook governed the terms and conditions of her employment.
Colban was dismissed on October 3, 1979, for in the words of the letter of dismissal, "(participating) in griping sessions with and about fellow employees". By her counsel, she requested the County Commissioners to provide her a hearing concerning the dismissal. The request was refused and she appealed the Commissioners' action refusing the hearing to the Court of Common Pleas, alleging that her dismissal without notice of a hearing or opportunity to be heard was contrary to provisions of the Local Agency Law, 2 Pa.C.S. §§ 551-555, 751-754. The court, after hearing, held that Colban's employment was at the will of her employer; that she had no contract which gave her a right to continued employment; and that she was not entitled to a Local Agency Law hearing. This appeal followed.
Section 5 of the Local Agency Law, 2 Pa.C.S. § 553 provides that "(n)o adjudication of a local agency shall be valid as to any party unless he shall have been afforded reasonable notice of a hearing and an opportunity to be heard." Adjudication is defined at 2 Pa.C.S. § 101 as "(a)ny final order, decree, decision, determination or ruling by an agency affecting personal or property rights, privileges, immunities, duties, liabilities or obligations of any or all of the parties to the proceedings in which the adjudication is made." If Colban had a property right in her employment, her dismissal affected that right and was an adjudication lacking validity without notice of hearing and an opportunity to be heard. If she had no property right in her employment, there was no adjudication and no right to hearing. Amesbury v. Luzerne County Institution District, 27 Pa.Cmwlth. 418, 421, 366 A.2d 631, 633 (1976).
One may have a property right in public employment if he has an enforceable expectation of continued employment or "some form of guarantee". McCorkle v. Bellefonte Area Board of School Directors, 41 Pa.Cmwlth. 581, 585, 401 A.2d 371, 374 (1979); Fair v. Delaney, 35 Pa.Cmwlth. 103, 385 A.2d 601 (1978).
Colban says that the following provisions of the Cedar Haven Handbook furnished her a form of guarantee of continued employment and therefore a property right in her employment:
5.7 Disciplinary Procedure Administration reserves the right to amend and alter these rules as needed. Disciplinary action will be taken against employees for violations and infractions of the rules and policies in this handbook. Generally the following disciplinary procedure will be in effect for employees.
1st Offense oral warning to be documented and placed in the employees personnel folder.
2nd Offense written reprimand to be placed in the employees file.
3rd Offense written warning with the possibility of suspension if warranted.
4th Offense suspension pending termination.
The disciplinary procedure excludes those offenses where immediate suspension pending termination of employment is warranted. Neglect of the care of residents affecting patient's health, safety or mental well-being, use of intoxicating liquids on County premises or reporting to work under the influence of narcotic drugs of any kind, sabotage, theft of county, employee or patient's property are cause for automatic suspension pending termination. Additionally, depending on the severity, fighting and insubordination may also be cause for immediate suspending termination.
Appropriate disciplinary action will be taken for violation or infraction of the...
To continue reading
Request your trial