protected rights, and in this respect the motion to dismiss must be granted.
The facts as presented in the pleadings and the exhibits attached thereto are as follows:
Plaintiff Harold Olson was a Sergeant in the Police Department of the Borough of Homestead. In March, 1975, plaintiff was arrested and charged with indecent assault and corrupting children. Plaintiff was arraigned under §§ 3125 and 3126 of the Pennsylvania Crimes Code. Shortly thereafter, Homestead Mayor James E. Armstrong suspended the plaintiff from the police force without pay until the next regular meeting of the Borough Council (53 P.S. § 46124). In a letter dated March 21, 1975, Mayor Armstrong formally advised the plaintiff that he was being suspended for a violation of law which constituted a misdemeanor or a felony (53 P.S. § 46190(3)), and for conduct unbecoming an officer (53 P.S. § 46190(4)). The Mayor's action was effective March 21, 1975. At its regular meeting on April 11, 1975, the Council upheld the Mayor's action and suspended the plaintiff pending disposition of the criminal charges. Although the applicable statute (53 P.S. § 46191) provides a right of appeal to the Civil Service Commission following such a suspension, the plaintiff did not file an appeal.
On September 8, 1975, following a non-jury trial before Judge George Ross of the Court of Common Pleas of Allegheny County, the plaintiff was found guilty on one count of indecent assault upon a 13-year-old girl and on one count of corrupting the morals of a minor child. Plaintiff Olson was placed on one-year's probation by the court. Olson's appeal of this conviction is now pending. In a letter of September 12, 1975, Mayor Armstrong notified the plaintiff that the Council would meet September 16th to consider the plaintiff's status as an employee of the police department. Plaintiff was invited to be present with legal counsel. (See Complaint, Exhibit A).
On September 16, 1975, the Council met at the borough building. Plaintiff Olson was present and, although his attorney was unavailable due to illness, he did not object to proceeding without counsel. The Council received a certified copy of the court record of plaintiff's conviction in the state court and then offered plaintiff an opportunity to speak in his own behalf. The plaintiff requested that any action be delayed pending the outcome of his appeal of the conviction. The Council then advised plaintiff that his employment was terminated effective immediately. (See Complaint, Exhibit B). The following day, in a letter written by Borough Manager William Macosky, Jr., the plaintiff was formally advised of his dismissal and the reasons for the Council decision. (See Complaint, Exhibit C).
Plaintiff appealed the Council's decision of termination to the Borough Civil Service Commission. A hearing was held before the Commission on September 23, 1975, at which time plaintiff Olson was present and represented by legal counsel. On November 10, 1975, plaintiff was notified of the Commission's unanimous decision to uphold the plaintiff's termination by the Borough Council. Pursuant to statute (53 P.S. § 46191), a decision of the Commission may be appealed within 60 days to the Court of Common Pleas. Plaintiff did not file a timely appeal, but did later file a Petition for Leave to Appeal Nunc Pro Tunc. On April 12, 1976, the Court of Common Pleas of Allegheny County refused to grant the petition. Subsequently, plaintiff filed the instant action in this court.
In the Complaint, plaintiff does not allege that he was terminated for some impermissible reason, such as a reprisal for the exercise of constitutionally protected rights. In fact, plaintiff does not challenge at all the reasons for his removal.
His only claim is that the Borough deprived him of property without due process of law by: (1) suspending plaintiff from his position as Sergeant of Police before his trial and conviction; (2) failing to give public notice of the termination hearing; and (3) failing to record the minutes of the hearing.
Before examining these contentions, it is necessary to look at the nature of the property interest in question. If plaintiff had a property interest in his public employment, that interest was created not by the Constitution but rather by the state law. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). The applicable state statute provides:
"No person employed in any police or fire force of any borough shall be suspended, removed or reduced in rank except for the following reasons:
. . .