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JAMES A. ZIMMERMAN v. CITY JOHNSTOWN. JAMES A. ZIMMERMAN (11/08/76)

decided: November 8, 1976.

JAMES A. ZIMMERMAN
v.
CITY OF JOHNSTOWN. JAMES A. ZIMMERMAN, APPELLANT



Appeal from the Order of the Court of Common Pleas of Cambria County in case of James A. Zimmerman v. City of Johnstown, No. 1974-3710.

COUNSEL

James R. DiFrancesco, for appellant.

Richard J. Green, Jr., for appellee.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate. Opinion by President Judge Bowman. Dissenting Opinion by Judge Blatt.

Author: Bowman

[ 27 Pa. Commw. Page 44]

This is an appeal from an order of the Cambria County Court of Common Pleas granting the City of Johnstown's (appellee) motion to quash an appeal from the suspension of appellant, an officer in the Johnstown Police Department.

On September 20, 1974, appellant was notified that he was suspended for a period of ten days without pay and/or benefits pursuant to Section 4408 of The Third Class City Code, Act of June 23, 1931, P.L. 932, as amended, 53 P.S. § 39408. Appellant promptly requested a hearing which request was denied. He then filed an appeal in the court below alleging, inter alia, that he was entitled to a hearing pursuant to the Local Agency Law, Act of December 2, 1968, P.L. 1133, 53 P.S. § 11301 et seq. The Court below granted the appellee's motion to quash. This appeal followed.

[ 27 Pa. Commw. Page 45]

Section 4408 of The Third Class City Code provides, in pertinent part: "All employes subject to civil service shall be subject to suspension by the director of the department for misconduct, or violation of any law of this Commonwealth, any ordinance of the city, or regulation of the department, pending action by the city council upon the charges made against any of such employes. On hearing before the city council, where they may be represented by counsel, they may be fined or suspended for a period not exceeding thirty days with or without pay, or they may be discharged by city council, if found guilty of the charges made against them. The director of each such department may, for misconduct or violation as aforesaid, suspend any employe of such department for a period of Page 45} ten days, with or without pay, without preferring charges and without a hearing of council. . . ." (Emphasis added.) Until recently, it was established that there was no right of appeal from a ten day suspension under this provision and the only remedy for a wrongful suspension was an action in assumpsit for lost pay. Loftus v. Carbondale, 405 Pa. 276, 175 A.2d 85 (1961).*fn1 However, Article V, Section 9, of the Pennsylvania Constitution of 1968 provided, for the first time, an express constitutional right of appeal from an administrative agency to a court of record, the selection of such court to be as provided by law. To implement this provision the Legislature enacted the Local Agency Law (Act), effective January 1, 1969. Section 12 of the Act specifically repeals all other acts and parts of acts insofar as they are inconsistent therewith.

The issue presented here is whether the City's suspension of appellant constitutes an adjudication by a local agency within the meaning of the Act, thus entitling appellant to a hearing before such suspension can be valid. We hold that it does and therefore reverse.

Section 2 of the Act, 53 P.S. § 11302(2), defines a "local agency" as "any department . . . office or other agency of a political subdivision. . . ." The police department of the City of Johnstown is clearly within this definition.

The remaining question is whether the suspension constitutes an "adjudication" within the meaning of Section 2 of the Act, ...


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