Werner v. Zazyczny

• Decision Date: 21 August 1996
• Citation: 681 A.2d 1331,545 Pa. 570
• Parties: Daniel H. WERNER, Jr., Appellant, v. Joseph L. ZAZYCZNY, Secretary Office of Administration and William G. Chadwick, Jr., Inspector General, Appellees.
• Court: Pennsylvania Supreme Court

Page 1331

681 A.2d 1331

545 Pa. 570

Daniel H. WERNER, Jr., Appellant, v. Joseph L. ZAZYCZNY, Secretary Office of Administration and William G. Chadwick, Jr., Inspector General, Appellees.

Supreme Court of Pennsylvania.

Submitted Dec. 6, 1995.

Decided Aug. 21, 1996.

Elliot A. Strokoff, Jill C. Fluck, Harrisburg, for Appellant.

Frank A. Fisher, Jr., Patricia J. Goldband, Harrisburg, for Appellees.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ.

OPINION OF THE COURT

CASTILLE, Justice.

Appellant, Daniel H. Werner, Jr., directly appeals the Commonwealth Court's dismissal of his Petition for Review which sought a writ of mandamus to compel an administrative hearing on his discharge from his position as Special Investigator III with the Inspector General's Office. The first issue raised is whether appellant, who was an at-will public employee, has a property interest or privilege in his continued employment such that he would be entitled to an administrative hearing on his dismissal from employment. The other issue raised is whether the Commonwealth Court erred in not granting appellant leave to amend his Petition for Review. ¹ Because we find that appellant's claims are without merit, we affirm the Commonwealth Court's order sustaining appellees' preliminary objections to appellant's Petition for Review.

The facts giving rise to this appeal are that on September 14, 1987, appellant, Daniel H. Werner, Jr., was hired through the Executive Offices of Administration of the Commonwealth of Pennsylvania ("OA") as a Special Investigator II in the Office of Inspector General ("OIG"). Appellant later received a promotion to the rank of Special Investigator III. Neither of these positions were protected by the provisions of the Civil Service Act. ²

On August 9, 1993, while on disability leave from his Special Investigator III position, appellant was arrested by the Pennsylvania State Police as a result of a domestic altercation which he had with his wife. After being arrested, appellant was charged with one felony offense (aggravated indecent assault) and three misdemeanor offenses (simple assault, reckless endangerment of another person and terroristic threats). In a letter dated August 12, 1993, appellee William G. Chadwick, Jr., then Inspector General of the Commonwealth, informed appellant that he was suspended without pay until further notice in accordance with the provision of the Governor's Code of Conduct For Appointed Officials and State Employes Criminal Charges ("Governor's Code of Conduct"), 4 Pa.Code § 7.173. ³ Mr. Chadwick's letter also informed appellant that the OIG would conduct an independent investigation into the circumstances surrounding his arrest.

On December 13, 1995, all four charges against appellant were dismissed by District Justice Gregory Johnson. ⁴ Appellant, however, remained on suspension pending completion of the independent investigation being conducted by the OIG.

In a letter dated March 2, 1994, the OA's personnel officer informed appellant that he was being dismissed from his Special Investigator III position as of March 4, 1994. The March 2, 1994 letter informed appellant that the OIG investigation determined that:

1. While on paid work-related disability leave resulting from an accident and injury which occurred on June 23, 1993, you conducted an extensive surveillance of your wife during which you drove your private vehicle to Maryland.

2. On the same day, you physically assaulted your wife at your residence causing bodily injury.

3. You were arrested by the Pennsylvania State Police and charged with the above four offenses.

4. You were previously arrested by the State Police for a similar incident on September 25, 1989.

5. You and your counsel, [sic] improperly induced your wife to refuse to cooperate with the District Attorney's prosecution by offering her specific financial incentives not to testify.

6. As a direct result of your wife's subsequent refusal to testify, the charges against you were dismissed.

The letter also stated that the OIG believed these findings justified appellant's dismissal because the OIG found that appellant's actions discredited and embarrassed the OIG and caused the OIG to lose the necessary trust and confidence in him that was required for the Special Investigator III position.

Following his dismissal, appellant requested that appellee Joseph L. Zazyczny, Secretary of Administration, conduct an administrative hearing. This request for a hearing was denied.

Appellant then filed a Petition for Review with the Commonwealth Court of the Secretary of Administration's refusal to conduct a hearing. In his petition, appellant sought a writ of mandamus to compel either his reinstatement to his Special Investigator III position or a post-discharge hearing. ⁵ Appellees filed Preliminary Objections and a Motion to Quash. The Commonwealth Court sustained appellees' preliminary objections and dismissed appellant's Petition for Review on the basis that appellant, as an at-will employee, had no right to an administrative hearing under Section 504 of the Administrative Agency Law. On August 15, 1994, the Commonwealth Court denied appellant's Application for Reargument.

In order to determine whether the Commonwealth Court properly sustained appellees' preliminary objections, this Court must consider as true all the well-pleaded material facts set forth in appellant's petition for review and all reasonable inferences that may be drawn from those facts. Mulholland v. Pittsburgh National Bank, 405 Pa. 268, 271-72, 174 A.2d 861, 863 (1961). Preliminary objections should be sustained only in cases clear and free from doubt that the facts pleaded by appellant are legally insufficient to establish a right to relief. Baker v. Brennan, 419 Pa. 222, 225, 213 A.2d 362, 364 (1965). Because appellant has failed to plead facts that would warrant the issuance of a writ of mandamus, we affirm the Commonwealth Court's grant of appellees' preliminary objections.

Mandamus "is only appropriate to compel performance of a ministerial act or mandatory duty where there is a clear right in the petitioner to have the act performed ... and a lack of any other appropriate and adequate remedy." Travis v. Teter, 370 Pa. 326, 329, 87 A.2d 177, 179 (1952). The burden of proof falls upon the party seeking this extraordinary remedy to establish his legal right to such relief. Citizens Committee to Recall Rizzo v. Board of Elections, 470 Pa. 1, 7, 367 A.2d 232, 235 (1976).

We also preliminarily note that as a general rule, Pennsylvania law holds that "employees are at-will, absent a contract, and may be terminated at any time, for any reason or for no reason." Stumpp v. Stroudsburg Municipal Authority, 540 Pa. 391, 658 A.2d 333, 335 (1995). This general rule is not abrogated just because the employee is a governmental worker since one does not have a per se right in governmental employment. Commonwealth, Office of Administration v. Orage, 511 Pa. 528, 531, 515 A.2d 852, 853 (1986). Moreover, an at-will employee has no cause of action against his employer for termination of the at-will relationship except where that termination threatens clear mandates of public policy. Paul v. Lankenau Hospital, 524 Pa. 90, 95, 569 A.2d 346, 348 (1990).

1. Administrative Agency Law

Appellant first maintains that he is entitled to an administrative hearing under Section 504 of the Administrative Agency Law, 2 Pa.C.S. § 504, because his dismissal from his Special Investigator III position constituted an adjudication by a Commonwealth agency which affected a property right or privilege. Section 504 of the Administrative Agency Law provides for an administrative review of a Commonwealth agency where said decision constitutes an adjudication. ⁶ While appellees admit that appellant was not afforded an administrative hearing on his termination they argue that appellant was not entitled to a hearing because the decision to dismiss him from his Special Investigator III position did not constitute an "adjudication" as defined in Section 101 of the Administrative Law and Procedure Act. Under Section 101, an adjudication is defined in relevant part 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.

2 Pa.C.S. § 101. Thus, in order for appellant's dismissal to have been an "adjudication" which would entitle him to an Administrative Agency Law hearing, appellant must establish that his dismissal affected some personal or property right, privilege or immunity.

A governmental employee only has a personal or property right in his employment where he can establish a legitimate expectation of continued employment through either a contract or a statute. Id.; Gough v. Borough of Norristown, 66 Pa. Commw. 401, 403, 444 A.2d 839, 840 (1982). Here, appellant is admittedly a non-union, non-civil service employee. Appellant cannot, therefore, point to any statute or employment contract which would guarantee him continued employment as a Special Investigator III. See Pivarnik v. Commonwealth, Dep't of Transportation, 82 Pa. Commw. 42, 45, 474 A.2d 732, 734 (1984) (non-union, non-civil service public employee cannot claim statutory right to continued governmental employment).

Despite being an at-will employee, appellant asserts that the decision to dismiss him from employment was an adjudication which entitled him to an administrative hearing because the Governor's Code of Conduct, 4 Pa.Code §§ 7.171-7.179, created a legitimate expectation of continued employment sufficient to convey a personal or property right in his continued employment. ⁷ We find this contention to be without merit.

The Governor's Code of Conduct, 4 Pa.Code §§ 7.171-7.179, is not a statute. Instead, it was...