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JOHN C. FAIR v. JEREMIAH P. DELANEY (04/27/78)

decided: April 27, 1978.

JOHN C. FAIR, SR., APPELLANT
v.
JEREMIAH P. DELANEY, A. RUSSELL PARKHOUSE, FRANK W. JENKINS, LAWRENCE H. CURRY AND HENRY E. PENNINGTON, APPELLEES. (2 CASES)



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of John C. Fair, Sr. v. Jeremiah P. Delaney, A. Russell Parkhouse, Frank W. Jenkins, Lawrence H. Curry and Henry E. Pennington, Nos. 76-1241 and 76-1242.

COUNSEL

J. Peirce Anderson, with him Kane, Pugh, Anderson, Subers & McBrien, for appellant.

Joseph A. Smyth, Assistant County Solicitor, for appellees.

Judges Wilkinson, Jr., Blatt and DiSalle, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson

[ 35 Pa. Commw. Page 104]

Appellant was employed as a full-time deputy sheriff in Montgomery County. On November 14, 1975, appellant received a dismissal order, effective immediately, dismissing him for "improper attitude and conduct unbecoming a deputy sheriff." On December 5, 1975, appellant made a written request to appellee sheriff (sheriff) for a hearing. Counsel for the sheriff replied that since the sheriff would testify in such a hearing, the hearing should be sought before appellee Commissioners of Montgomery County (Commissioners). A written request to the Commissioners for a hearing was denied. On January 26, 1976, appellant filed a petition for declaratory judgment

[ 35 Pa. Commw. Page 105]

    and a complaint in mandamus with the Montgomery County Court of Common Pleas, both alleging that he was entitled to a hearing. Appellees demurred to both the petition and complaint, alleging failure to state a cause of action, and moved to quash both on the grounds that appellant failed to appeal his discharge within the 30-day limit for appeals of final adjudications prescribed by Section 7 of the Local Agency Law (Local Agency Law), Act of December 2, 1968, P.L. 1133, as amended, 53 P.S. § 11307, one of the statutory bases of appellant's claims for relief. The common pleas court ruled that an "adjudication" had been rendered (as defined in Section 2(1) of the Local Agency Law, 53 P.S. § 11302(1)) but that an appeal under the Local Agency Law was not timely. It therefore granted appellees' motions to quash. This appeal followed.

Appellant's first argument that he is entitled to a hearing is based upon the Act of May 31, 1974, P.L. 296, as amended, 16 P.S. § 4221.1 et seq. (known as and referred to here as the Deputy Sheriffs Act). Section 10(b) of the Deputy Sheriffs Act, 16 P.S. § 4221.10(b), provides, inter alia, that a person reduced in rank, suspended, furloughed or discharged has a right to appeal to the county civil service commission for a hearing on the reasons or charges preferred against him. We must reject appellant's argument, however, because the Deputy Sheriffs Act is inapplicable to him. Section 1 of the Deputy Sheriffs Act, 16 P.S. § 4221.1, refers expressly and only to deputy sheriffs in "a county of the second class." Montgomery County is not a second class county, but rather a second class A county, having been designated as such pursuant to a 1967 amendment*fn1 to Section 210 of the Second Class County Code (Code),

[ 35 Pa. Commw. Page 106]

Act of July 28, 1953, P.L. 723, as amended, 16 P.S. § 3210, which created second class A counties.

Appellant argues that Montgomery County is nonetheless subject to the Deputy Sheriffs Act because the same legislation which created second class A counties also provided, in an amendment to Section 102 of the Code, 16 P.S. § 3102, that "[e]xcept where otherwise specifically limited, this act applies to all counties of the second class and second class A." Especially since the Deputy Sheriffs Act postdates the amendment to the Code creating second class A counties by nearly seven years, we hold that the express reference in the Deputy Sheriffs Act only to "a county of the second class" is the type of specific limitation contemplated by the legislature precluding construction of the Deputy Sheriffs Act to apply to a second class A county as well.

Appellant's next argument that he is entitled to a hearing is based on Section 4 of the Local Agency Law, 53 P.S. § 11304, which states, in pertinent part, that "[n]o adjudication shall be valid as to any party unless he shall have been afforded reasonable notice of a hearing and opportunity to be heard." Accepting appellant's premise that he was employed by a "local agency," as defined in Section 2(2) of the Local Agency Law, 53 P.S. § 11302(2), we must now determine whether an ...


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