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HOCH v. COUNTY OF FAYETTE

June 25, 1982

Richard A. HOCH, Plaintiff,
v.
COUNTY OF FAYETTE, Richard D. Cicchetti, Fred C. Adams, Conrad D. Capuzzi, William J. Franks, Defendants



The opinion of the court was delivered by: ZIEGLER

The plaintiff in this civil action, Richard A. Hoch, formerly served as an assistant in the Probation Office of the Court of Common Pleas of Fayette County, Pennsylvania. The position was court-appointed. In March of 1981, while so employed, Hoch announced his candidacy for the elected position of District Magistrate in the County of Fayette. He was then informed by defendant, the Honorable Richard D. Cicchetti, President Judge of the Court of Common Pleas of Fayette County, that plaintiff could not remain as an employee of the court while pursuing a candidacy for political office. The judge referred plaintiff to the decision of the Supreme Court of Pennsylvania in In Re: Prohibition of Political Activities by Court-Appointed Employees, 473 Pa. 554, 375 A.2d 1257 (1977). In that case, the highest appellate court of Pennsylvania unanimously affirmed the directives of its Administrative Office which prohibited political activity on the part of court-appointed employees. The court stated in its per curiam opinion:

These directives by the Court Administrator relative to court-appointed employees were issued with the knowledge and approval of this Court and correctly state the public policy and general principles involved. Indeed, none of the petitioners challenges the authority of Administrator's advises or questions the wisdom of the prohibitions therein set forth. The purpose of the Memoranda, of course, was to maintain not only the independence, integrity and impartiality of the judicial system, but also the appearance of these qualities. The vice of mixing political and judicial activity is too obvious to require elaboration here. Only by a steadfast separation of partisan political activity from the judicial function can the confidence of the public in courts and judges be merited and maintained.

 473 Pa. 554, 375 A.2d at 1259-60.

 Despite this admonition, Hoch continued to campaign for public office based on a recently enacted provision of the Public Officials Ethics Act, 65 P.S. § 410, which provides as follows:

 
Nothing in this Act, or in any other law or Court rule shall be construed to prohibit any constable or any employee of a Court of Common Pleas ... from also being an officer of a political body or political party as such terms are defined in ... the "Pennsylvania Election Code,' and the same may hold the office of a county, state or national committee of any political party, and may run for and hold any elective office, and may participate in any election day activities. *fn1"

 When plaintiff refused to withdraw as a candidate, his employment was terminated with the Fayette County Probation Office, by order of court dated March 30, 1981.

 Plaintiff instituted the instant civil action predicated on 42 U.S.C. § 1983 alleging that the County of Fayette, Pennsylvania, in terminating his employment acted under color of state law, and deprived him of his liberty and property without due process of law. *fn2" This court has jurisdiction by virtue of 28 U.S.C. § 1334. Presently before this court is the motion of defendants to dismiss for failure to state a claim upon which relief may be granted. For the reasons that follow, we find that plaintiff has failed to state a cause under 42 U.S.C. § 1983, and dismissal with prejudice is required.

 I.

 The Fourteenth Amendment prohibits any state from depriving an individual of life, liberty or property without due process of law. The Supreme Court has repeatedly rejected the notion that every grievous loss visited upon a person by a state is sufficient to invoke the procedural protections of the due process clause. Meachum v. Fano, 427 U.S. 215, 224, 96 S. Ct. 2532, 2538, 49 L. Ed. 2d 451 (1976). Rather, the guarantees embodied in the clause come into play only when a decision of a state implicates some specific interest-life, liberty or property-within the meaning of the Fourteenth Amendment. Ingraham v. Wright, 430 U.S. 651, 672, 97 S. Ct. 1401, 1413, 51 L. Ed. 2d 711 (1976).

 We are first required to consider whether Hoch possessed a "property" interest in his job at the Fayette County Probation Office, so that the safeguards of the due process clause were triggered when the job was terminated. We conclude that plaintiff had no such interest.

 Courts have found that an employee has a property interest in employment where-by statute, rule, or contract-the employee may be discharged only for cause. Arnett v. Kennedy, 416 U.S. 134, 94 S. Ct. 1633, 40 L. Ed. 2d 15 (1974). On the other hand, a constitutionally protected property interest has not been recognized where an employee serves at the will and pleasure of a public employer. Bishop v. Wood, 426 U.S. 341, 343-47, 96 S. Ct. 2074, 2076-78, 48 L. Ed. 2d 684 (1976).

 Under Pennsylvania law, a public employee such as Hoch "takes his job subject to the possibility of summary removal by the employing authority. He is essentially an employee-at-will." Scott v. Philadelphia Parking Authority, 402 Pa. 151, 154, 166 A.2d 278, 280 (1960); see also Marino v. Bowers, 483 F. Supp. 765, 770 (E.D.Pa.1980). Because plaintiff was a non-contractual, at-will employee of the County of Fayette, there is no right to continued employment which could constitute a "property" interest within the meaning of the due process clause. *fn3"

 II.

 We next consider whether plaintiff suffered a deprivation of "liberty" when he was terminated from his job, so as to implicate the ...


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