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OMRCANIN v. HASSLER (04/04/73)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: April 4, 1973.

OMRCANIN
v.
HASSLER, ET AL.

Original jurisdiction in case of Ivo Omrcanin v. William W. Hassler, President of Indiana University of Pennsylvania, and Joseph W. Serene, John B. Cutler, Edwin L. Snyder, Sam R. Light, Henry Mitchell, James M. Stroker, James M. Wyant, Patrick F. McCarthy, Members of the Board of Trustees of Indiana University.

COUNSEL

Marjorie Hanson Matson, for plaintiff.

Edward A. Miller, Assistant Attorney General, for defendants.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 8 Pa. Commw. Page 224]

In this complaint prosecuted under the original jurisdiction of this Court, plaintiff alleges that the defendants committed discriminatory and prejudicial acts

[ 8 Pa. Commw. Page 225]

    against him in the course of his employment as a professor at Indiana University of Pennsylvania. The facts are detailed in the opinion reported in 6 Pa. Commonwealth Ct. 220 (1972).

A hearing was held before this writer sitting as a trial judge. At the close of plaintiff's case, which he presented pro se, the Court granted a motion for non-suit with respect to the allegations contained in certain paragraphs of the complaint. The Court also at that time denied a motion for non-suit with respect to the allegations in other paragraphs, specifically those in which plaintiff alleged: (1) a campaign of harassment with the intention of forcing plaintiff's resignation; (2) malicious and vindictive actions against him; (3) refusal of defendants to afford plaintiff the status that he enjoyed prior to the termination of his employment and his subsequent reinstatement.

Defendants presented testimony on these issues and at the close of the case the Court issued an order of non-suit as to the complaint in toto. It was error to do so.

Under Pennsylvania procedure, a request by a defendant for a non-suit is based on his offering no evidence and once the defendant does introduce evidence a court may not grant a non-suit. Act of March 11, 1875, P.L. 6, § 1, 12 P.S. § 645; Wise, Inc. v. Beech Creek Railroad Co., 437 Pa. 389, 263 A.2d 313 (1970); Highland Tank and Manufacturing Company v. Duerr, 423 Pa. 487, 225 A.2d 83 (1966).

However, close re-examination of the record here convinces us that plaintiff has failed to prove his case.*fn1

[ 8 Pa. Commw. Page 226]

We also remain convinced that the original granting of non-suit as to specified paragraphs was proper. The plaintiff here not only has not supported his allegations but has elicited testimony from witnesses called on his behalf which tends to support contrary propositions. We do not believe that the prior decision on the merits of the case was erroneous, only that it was improper for the Court to issue an order of non-suit to the complaint in toto. It would have been proper to grant a motion to dismiss at the end of the case.*fn2

Accordingly, we issue the following

Order

And Now, this 4th day of April, 1973, the order of the court of July 26, 1972, is vacated; non-suit is granted to the complaint excluding paragraphs 9, 10, 11, 11(a), 11(b) and 11(c); motion to dismiss the complaint with respect to the remaining allegations is granted; costs to be paid by plaintiff.

Disposition

Order of non-suit vacated; non-suit granted as to a portion of complaint, motion to dismiss granted as to balance of complaint.


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