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MICHELE C. ROWE v. TOWNSHIP LOWER MERION (09/26/88)

decided: September 26, 1988.

MICHELE C. ROWE, APPELLANT
v.
TOWNSHIP OF LOWER MERION, BOARD OF COMMISSIONERS OF LOWER MERION TOWNSHIP AND PERSONNEL REVIEW BOARD OF LOWER MERION TOWNSHIP, APPELLEES



Appeal from the Order of the Court of Common Pleas of Montgomery County, in the case of Michelle C. Rowe v. Township of Lower Merion, Board of Commissioners of Lower Merion Township and Personnel Review Board of Lower Merion Township, No. 84-13129.

COUNSEL

J. Scott O'Keefe, for appellant.

Gilbert P. High, Jr., High, Swartz, Roberts & Seidel, Township Solicitor, for appellees.

Judge MacPhail, and Senior Judges Barbieri and Kalish, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 120 Pa. Commw. Page 75]

Michele C. Rowe (Appellant) appeals the order of the Court of Common Pleas of Montgomery County which sustained the preliminary objections of the Township of Lower Merion (Township) in response to an action seeking a writ of mandamus filed by Appellant. We affirm.

Appellant was employed by the Township as an Assistant Director of Recreational Services from July 7, 1980 until March 16, 1984 when her employment was terminated by the Township. On March 24, 1984, Appellant filed a petition for review with the Personnel Review Board of the Township of Lower Merion (Review Board)*fn1 requesting a hearing. The Review Board dismissed the petition without granting a hearing, finding that the Township's act of terminating Appellant's employment was clearly substantiated, appropriate and reasonable under the circumstances.

Appellant then appealed to the Board of Commissioners of Lower Merion Township (Board of Commissioners) on May 13, 1984 also requesting a hearing before that body. The Board of Commissioners, without conducting a hearing, upheld the decision of the Review Board that Appellant's dismissal was proper.

Appellant next filed an action in the court of common pleas seeking a writ of mandamus to compel the Township to reinstate her position and award her back pay with interest and counsel fees. The Township filed preliminary objections in the nature of a demurrer in response to Appellant's complaint, stating that Appellant failed to plead an enforceable property right to continued

[ 120 Pa. Commw. Page 76]

    employment. The preliminary objections were sustained by the court of common pleas, and Appellant was allowed an additional thirty (30) days to file an amended complaint pleading an enforceable property right. The Township again filed preliminary objections in response to Appellant's amended complaint requesting that the complaint be dismissed with prejudice. The court of common pleas, by order dated September 18, 1987, followed by an opinion dated November 16, 1987, sustained Township's preliminary objection to Appellant's amended complaint. Appellant now appeals to this Court.

The Appellant first alleges that the court of common pleas erred in finding that Appellant did not plead sufficient information in either her initial or amended complaints to support her claim of a property right to continued employment. We disagree.

Appellant's amended complaint in support of her alleged property right states that Appellant was classified prior to her termination as one with permanent status, as provided in the Personnel Handbook, page 11. Amended Complaint, Paragraph 7, R.R. at 65a. The Personnel Handbook is not attached to the complaint as an exhibit. Pa. R.C.P. No. 1019(h) provides that where averments in a complaint make reference to a written instrument, a copy of that instrument must be attached to the complaint. This Court has held that where the instrument is not attached as an ...


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