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APPEAL BETTY COLBAN. BETTY COLBAN (03/26/81)

decided: March 26, 1981.

IN RE: APPEAL OF BETTY COLBAN. BETTY COLBAN, APPELLANT


Appeal from the Order of the Court of Common Pleas of Lebanon County in case of In Re: Appeal of Betty Colban, No. 3927, 1979.

COUNSEL

David J. Brightbill, Siegrist, Koller, Brightbill & Long, for appellant.

John R. Kelsey, III, for appellee.

Judges Mencer, Rogers and Craig, sitting as a panel of three. Opinion by Judge Rogers. This decision was reached prior to the expiration of the term of office of Judge Wilkinson.

Author: Rogers

[ 58 Pa. Commw. Page 105]

The appellant, Betty Colban, was dismissed from her employment at the Life Support Facility operated by the Lebanon County Mental Health/Mental Retardation Program on the grounds of Cedar Haven, the Lebanon County Home. Colban was a county employee. Shortly after she was employed on May 11, 1976, she was supplied with the Cedar Haven Employee Handbook and told that the Handbook governed the terms and conditions of her employment.

Colban was dismissed on October 3, 1979, for in the words of the letter of dismissal, "[participating] in griping sessions with and about fellow employees". By her counsel, she requested the County Commissioners to provide her a hearing concerning the dismissal. The request was refused and she appealed the Commissioners' action refusing the hearing to the Court of Common Pleas, alleging that her dismissal without notice of a hearing or opportunity to be heard was contrary to provisions of the Local Agency Law, 2 Pa. C.S. §§ 551-555, 751-754. The court, after hearing, held that Colban's employment was at the will of her employer; that she had no contract which gave her a right to continued employment; and that she was not entitled to a Local Agency Law hearing. This appeal followed.

Section 5 of the Local Agency Law, 2 Pa. C.S. § 553 provides that "[n]o adjudication of a local agency shall be valid as to any party unless he shall have been afforded reasonable notice of a hearing and an opportunity to be heard." Adjudication is defined at 2 Pa. C.S. § 101 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

[ 58 Pa. Commw. Page 106]

    the proceedings in which the adjudication is made." If Colban had a property right in her employment, her dismissal affected that right and was an adjudication lacking validity without notice of hearing and an opportunity to be heard. If she had no property right in her employment, there was no adjudication and no right to hearing. Amesbury v. Luzerne County Institution District, 27 Pa. Commonwealth Ct. 418, 421, 366 A.2d 631, 633 (1976).

One may have a property right in public employment if he has an enforceable expectation of continued employment or "some form of guarantee". McCorkle v. Bellefonte Area Board of School Directors, 41 Pa. Commonwealth Ct. 581, 585, 401 A.2d 371, 374 (1979); Fair v. Delaney, 35 Pa. Commonwealth Ct. 103, 385 A.2d 601 (1978).

Colban says that the following provisions of the Cedar Haven Handbook furnished her a form of guarantee of continued employment and therefore a property right in her employment:

5.7 Disciplinary Procedure -- Administration reserves the right to amend and alter these rules as needed. Disciplinary action will be taken against employees for violations and infractions of the rules and policies in this handbook. Generally the ...


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