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ARTHUR T. MCDERMOTT v. COMMONWEALTH PENNSYLVANIA (01/09/87)

decided: January 9, 1987.

ARTHUR T. MCDERMOTT, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF HEALTH, RESPONDENT



Appeal from the Order of the Board of Claims, in case of Arthur T. McDermott v. Commonwealth of Pennsylvania, Department of Health, No. 890, dated September 25, 1985.

COUNSEL

Spero T. Lappas, Stefanon & Lappas, for petitioner.

Michael B. Sutton, Deputy Attorney General, with him, Andrew S. Gordon, Chief Deputy Attorney General, Chief, Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondent.

Judges Craig, Doyle and Colins, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 103 Pa. Commw. Page 135]

Arthur T. McDermott, an appointed Commonwealth employee, appeals from an order of the Board of Claims denying him damages for a breach of the Department of Health's alleged promise that it would not abolish his position of Regulatory Coordinator which the department had recently established. We affirm.

On May 9, 1979, McDermott assumed the position of Legislative Counsel in the Department of Health. In July, 1981, the secretary of that department, Dr. H. Arnold Muller, requested McDermott to accept the newly established position of Regulatory Coordinator. The department was establishing that position pursuant to an Executive Order of the Governor. After numerous meetings with the secretary, McDermott assumed the new position on August 12, 1981, without tenure assurance in terms of civil service or collective bargaining agreement coverage.

[ 103 Pa. Commw. Page 136]

On November 8, 1982, the secretary advised McDermott that the department was abolishing the position of Regulatory Coordinator as of December 14, 1982.

McDermott filed a complaint against the department in the Board of Claims on June 8, 1983, alleging that he accepted the new position because the secretary had promised him that the position would be permanent and not subject to reclassification, reorganization or abolition. Alleging that the department breached that promise when it furloughed him in December, 1982, McDermott sought damages of $64,000, reflecting his loss of salary during the remaining term of the alleged contract.

This court's scope of review of a Board of Claims decision is limited to determining whether the board committed an error of law or made findings of fact which are not supported by substantial evidence. Consolidated Rail Corporation v. Pennsylvania Liquor Control Board, 90 Pa. Commonwealth Ct. 595, 496 A.2d 422 (1985).

McDermott contends that the board erred in finding that the secretary made no promise regarding job permanency because the department admitted, by denying generally in its answer to one of McDermott's complaint allegations that the Secretary had made a ...


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