Hunter v. Port Authority of Allegheny County

CourtSuperior Court of Pennsylvania
Citation277 Pa.Super. 4,419 A.2d 631
Decision Date03 April 1980

Argued Oct. 26, 1978.

Daniel P. McDyer, Pittsburgh, for appellant.

Russell W. Ayres, III, Pittsburgh, for appellee.



This appeal arises from an order dismissing a complaint for failure to state a cause of action upon which relief may be granted.

On November 14, 1977, appellant filed a complaint in equity in the Court of Common Pleas of Allegheny County containing the following allegations. In October 1976, appellant applied for employment as a bus driver with the Port Authority of Allegheny County. He was interviewed and tested by employees of the Port Authority's personnel division, and in July 1977, was informed that he could begin training as a bus driver in October 1977. On September 8, 1977, the Port Authority informed appellant that he would not be trained as a bus driver because he falsified his employment application. In filling out the application, appellant, unsure of the correct answer, did not respond to a question asking for information concerning appellant's past felony or misdemeanor convictions. Appellant, however, subsequently informed a personnel assistant of the Port Authority during an employment interview that in 1963 he had been convicted of an aggravated assault and battery that arose out of a domestic dispute and was sentenced to ninety days imprisonment. Appellant also told the personnel assistant that the Governor later unconditionally pardoned him for the offense. The complaint alleged that the Port Authority refused to employ him [1] because of this pardoned conviction (and, by implication, not because of his failure to complete his employment application properly), and that this refusal allegedly violated appellant's rights under article I, sections 1 and 10, of the Pennsylvania Constitution. The complaint prayed for an injunction "restraining the (Port Authority) from refusing to admit (appellant) to its bus driver training class and refusing to employ (appellant)," and for "such other relief as (the) Court may deem appropriate."

On December 16, 1977, the Port Authority filed preliminary objections in the nature of a demurrer to the complaint. The demurrer alleged that as a matter of law the refusal of the Port Authority to employ appellant as a bus driver because of his failure to disclose his prior criminal conviction did not constitute a violation of article I, sections 1 and 10. The demurrer also alleged that appellant lacked standing to challenge the Port Authority's actions, and that the court in equity lacked jurisdiction because appellant's complaint failed to allege the inadequacy of remedies at law. On April 26, 1978, the lower court sustained the demurrer and dismissed the complaint. The lower court reasoned that "(a) refusal to hire because of a conviction for aggravated assault and battery is reasonable, given the fact that a bus driver is constantly dealing with the public often under stressful and anger-provoking situations. Failure to disclose a material fact, such as the one in issue, is an element which may be considered, along with others, if any, factors in determining whether to enter into an employment contract. Furthermore, it may be noted that no person has a constitutional right to public employment. One merely has the right to be considered for a job on a fair and reasonable basis." Slip op. of the lower court at 2-3. [2] This appeal followed. [3]

The legitimacy of governmental bans [4] on the employment of ex-criminal offenders has, during the last decade, been the subject of considerable judicial and legislative concern. Federal courts have held that a ban prohibiting the employment of persons who have been guilty of past misconduct violates federal law unless the ban is rationally related to a legitimate governmental objective. See, e. g., Thompson v. Gallagher, 489 F.2d 443 (5th Cir. 1973) (municipal ordinance barring employment as custodian of person who had been discharged from army under other than honorable circumstances violates due process and equal protection clauses of the fourteenth amendment); Smith v. Fussenich, 440 F.Supp. 1077 (D.Conn.1977) (three judge court) (statute barring felony offenders from employment by licensed detective and security guard agencies violates equal protection clause); Osterman v. Paulk, 387 F.Supp. 669 (S.D.Fla.1974) (prohibition of the employment as city office clerks of persons who had used marijuana within past six months violates equal protection clause); Butts v. Nichols, 381 F.Supp. 573 (S.D.Iowa 1974) (three judge court) (statute prohibiting the employment of convicted felons in civil service positions violates equal protection clause); cf. Green v. Missouri Pacific Railroad Co., 523 F.2d 1290 (8th Cir. 1975) (employer's absolute policy of refusing consideration for employment to any person convicted of a crime other than a minor traffic offense violates the federal civil rights act because policy has discriminatory impact upon minorities and is not justified by business necessity). But see New York City Transit Authority v. Beazer, 440 U.S. 568, 99 S.Ct. 1355, 59 L.Ed.2d 587 (1979) (refusal of transit system to employ persons who use methadone does not violate federal civil rights act or equal protection clause).

Moreover, last year our Legislature enacted the Criminal History Record Information Act, Act of July 16, 1979, P.L. 116, No. 47, 18 Pa.C.S.A. §§ 9101 et seq. (effective January 1, 1980), which limits the use of criminal records by employers when making employment decisions. In part, the Act provides:

Convictions for felonies, as well as misdemeanor convictions and arrests for offenses, which relate to the applicant's suitability for employment in the position for which he has applied may be considered by the employer. Misdemeanor convictions and arrests for offenses which do not relate to the applicant's suitability for employment in the position for which he has applied shall not be considered by the employer.

18 Pa.C.S.A. § 9125 (1979 Pa.Legis.Serv. at 110).

Furthermore, our Supreme Court has not hesitated to limit unwarranted governmental restrictions upon an individual's right to engage in lawful employment on account of the individual's past criminal record. In Secretary of Revenue v. John's Vending Corp., 453 Pa. 488, 309 A.2d 358 (1973), the Court held that a corporation's wholesale cigarette dealer's license could not be lawfully revoked because the corporation's majority stockholder had been convicted of criminal offenses almost twenty years earlier. The Court noted that "every citizen has an inalienable right to engage in lawful employment. While a state may regulate a business which affects the public health, safety and welfare, it may not, through regulation, deprive an individual of his right to conduct a lawful business unless it can be shown that such deprivation is reasonably related to the state interest sought to be protected." 453 Pa. at 492, 309 A.2d at 361. The Court agreed that it was reasonable for the Department of Revenue to consider the character of persons being licensed to perform the duties of cigarette licensees, specifically with regard to integrity and honesty. The Court believed, however, that no material relevance existed between the past derelictions of the corporation's stockholder and either his or the corporation's present ability to perform the duties required by the position. The Court was especially mindful

of the deeply ingrained public policy of this State to avoid unwarranted stigmatization of and unreasonable restrictions upon former offenders. This State in recent years has been unalterably committed to rehabilitation of those persons who have been convicted of criminal offenses. To foreclose a permissible means of gainful employment because of an improvident act in the distant past completely loses sight of any concept of forgiveness for prior errant behavior and adds yet another stumbling block along the difficult road of rehabilitation.

453 Pa. at 494, 309 A.2d at 362.

The Court therefore concluded:

Under the facts such as those presented in this appeal, where the prior convictions do not in any way reflect upon appellant's present ability to properly discharge the responsibilities required by the position, we hold that the convictions cannot provide a basis for the revocation of a wholesaler's license.

453 Pa. at 495, 309 A.2d at 362.

See also Unemployment Bd. of Review v. Dixon, 27 Pa.Cmwlth. 8, 365 A.2d 668 (1976) (former employee may not be denied employment compensation for failing to inform employer at time of hiring of prior arrest record where the arrest record did not relate to a matter material to the employment sought).

Article I, section 1, of the Pennsylvania Constitution provides:

All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.

Appellant argues that this provision guarantees him the right to be fairly considered for public employment, and that this guarantee was violated when the Port Authority refused to hire him as a bus driver because of a thirteen year old misdemeanor conviction for which he had been pardoned. He also argues that the Port Authority's refusal to employ him solely because of this conviction constitutes a denial of "the full effect of the pardon and decreases (his) liberty without affording substantive or procedural due process."

Although we have found no case in this Commonwealth...

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