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VINSON v. FREEMAN

October 1, 1981

Charles E. VINSON, et al.
v.
Robert H. FREEMAN, et al.



The opinion of the court was delivered by: POLLAK

MEMORANDUM

Pursuant to 42 U.S.C. § 1983, plaintiffs Charles Vinson and William Hall instituted this suit against the Pennsylvania Department of Public Welfare and certain Department officials, alleging

 
the denial of plaintiffs' federal constitutional and statutory rights to substantive and procedural due process and to equal protection resulting from defendants' official policy and procedure of discharging employees of the Department of Public Welfare, Commonwealth of Pennsylvania solely because of a prior criminal record without regard to actual job performance.

 Complaint P 1. *fn1" Both named plaintiffs complain of their removal from their positions as Income Maintenance Worker (IMW) trainee, probationary status. Such removal is governed by 71 P.S. § 741.603(a):

 
At any time during his probationary period, the appointing authority may remove an employe if in the opinion of the appointing authority the probation indicates that such employe is unable or unwilling to perform his duties satisfactorily or that his dependability does not merit his continuance in the service.

 With respect to the merits, defendants have moved to dismiss on the ground that termination of a probationary position does not deprive one of a property interest of constitutional dimension. But defendants also argue that the merits need not and indeed should not be examined, for the asserted reasons that plaintiff Hall's claim has been mooted by a successful appeal to the Pennsylvania Civil Service Commission and that plaintiff Vinson's claim is premature in that his appeal is pending before the Civil Service Commission.

 Hall's Claim :

 Plaintiff Hall appealed to the Civil Service Commission before filing this law suit. A hearing was held on Hall's appeal on January 8, 1981. On April 21, 1981 after this suit was initiated the Commission handed down its decision sustaining Hall's appeal. The full text of the Commission's Adjudication is as follows:

 
This is an appeal by William E. Hall, Jr. from his removal as Income Maintenance Worker Trainee, probationary status, by the Philadelphia County Board of Assistance, Department of Public Welfare. The hearing was held Thursday, January 8, 1981, in the State Office Building, Philadelphia, Pennsylvania, before Chairman John A. H. McCarthy.

 FINDINGS OF FACT

 
2. Appellant was removed due to his conviction in 1970, for robbery, larceny and receiving stolen goods.
 
3. Appellant by answer to Preliminary Inquiry Relating to Appeal and Request for Hearing states his appeal was under Sections ...

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