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decided: October 17, 1988.


Appeal from Order of the Commonwealth Court dated October 3, 1986, at No. 2719 C.D. 1985, affirming order of the Court of Common Pleas of Centre County, dated September 5, 1985, at No. 85-587. Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Larsen, J., files a concurring opinion in which Papadakos, J., joins. Zappala, J., concurs in the result.

Author: Nix

[ 519 Pa. Page 382]


The subject of this appeal is an order of a common pleas court reversing an award by a labor arbitrator and sustaining the discharge of two county employees. When the trial court's order was affirmed by the Commonwealth Court, the involved employees and their labor union successfully petitioned us for further review pursuant to section 724(a) of the Judicial Code, 42 Pa.C.S. § 724(a).

The employee-appellants, Darrell Musser and Steven Brachbill, worked as guards at the county prison of Centre County. In late August of 1984, Officers Musser and Brachbill were dismissed from their positions, as a result of acts committed by them against a prison inmate, one Robert Riggleman. Based on the factually supported findings of the labor arbitrator referred to above, the acts in question may be described as follows:

In the evening of August 10, 1984, Officer Musser tricked Riggleman into going to a certain area in one of the prison dormitories. Upon Riggleman's arrival, Officers Musser and Brachbill seized him, wrestled him to his knees and put a pillowcase over his head. Assisting the two guards in this action was another inmate, named Nicholas. The pillowcase was full of shaving cream, and the three assailants proceeded to rub it repeatedly over Riggleman's head and face. When the cream got into Riggleman's mouth and nose, he began to have difficulty breathing. After a few moments the pillowcase was removed, at which point someone snapped Riggleman's picture. Riggleman emerged from the episode cursing and yelling at the three men; he then went to a lavatory to wash his face and head. Officer

[ 519 Pa. Page 383]

Musser, not yet done with the affair, put another handful of shaving cream on Riggleman's head.

The next day, August 11, Riggleman was again set upon by the trio of Musser, Brachbill and Nicholas. Brachbill and inmate Nicholas held Riggleman while Musser went to obtain a tube of Ben-Gay ointment from the medical supply room. When Musser returned, Brachbill and Nicholas pulled down Riggleman's trousers; and Musser applied the ointment to the captive's penis and testicles. Matters did not stop with the Ben-Gay incident. A short time later, after Riggleman had gone to shower and change his clothes, he was confronted anew by Brachbill, Nicholas and a guard named Goodrow. The two guards and Nicholas handcuffed Riggleman to a gate, with his hands being wrapped around one of its bars. They also shackled his ankles. One of the three captors then produced a paper bag, inscribed upon it a homosexual allusion, and put it over Riggleman's head. With Riggleman thus displayed, one of the captors photographed him. Shortly thereafter, a Lieutenant Bodge came upon the scene and ordered that Riggleman be freed from the handcuffs and shackles. That instruction was complied with -- at least temporarily.

Evidently, the command given by Lieutenant Bodge did not have a lasting effect on either Goodrow or Nicholas. Later that same day, August 11, 1984, Goodrow and Nicholas again joined forces to re-acquaint Riggleman with the handcuffs and the shackles. This time they held Riggleman down between two desks and shackled each of his ankles to a desk leg. They also cuffed his hands and secured the handcuffs to a candy machine by means of a belt. Officer Musser came upon the scene and joined in by sitting on Riggleman's stomach. Next, Officers Musser and Goodrow used a felt-tip pen to mark his body. The two guards drew circles around Riggleman's nipples, marked his face, put stripes on his penis, and wrote the names of two known homosexuals on his buttocks. Following that event, Riggleman was freed from the desks, but was kept in the handcuffs and shackles for an additional period of time.

[ 519 Pa. Page 384]

Brachbill, Musser, and Nicholas continued with their sport the next day, August 12. About seven o'clock that evening, Brachbill and Nicholas grabbed Robert Riggleman and pinned him to the floor. While Riggleman was thus restrained, Musser approached carrying a spouted, plastic bottle filled with water. Musser then proceeded to inject the bottle's spout into Riggleman's anus, and by that means emptied the water into his body. Upon the completion of that mission the three perpetrators ran from the scene.

The final series of events occurred during the evening of August 13, 1984. Musser and Brachbill accosted Riggleman and put him to the choice of having his head shaved or his testicles shaved. After the inmate had weighed the options given, Musser and Brachbill escorted him to a chair where they then proceeded to cut all the hair from his head and to shave it.

Riggleman's term of incarceration at the Centre County Prison expired on August 14, 1984. During a pre-release interview with a counselor, Riggleman revealed, upon inquiry, that the appearance of his head was the work of guards Musser and Brachbill. The counselor reported the head-shaving incident to the prison authorities, who then had the Deputy Warden look into the guards' behavior. The investigation brought to light the various acts committed by the guards against Riggleman during his last four days at the prison. Riggleman was at first reluctant to lodge a complaint or press charges; in his view the incidents were merely "horseplay" between friends. However, at the urging of the Deputy Warden, he changed his mind and decided to cooperate with the prison authorities in taking disciplinary action against Musser and Brachbill. Soon thereafter, the prison Warden submitted a report to the Centre County Prison Board, recommending that Officers Musser and Brachbill be discharged for physical abuse of inmate Riggleman and shackling him in violation of state regulations. On August 30, 1984, the Prison Board accepted the Warden's recommendation and notified the two guards of their dismissal.

[ 519 Pa. Page 385]

The guards at the Centre County Prison were represented by District 1199P National Union of Hospital and Health Care Employees, AFL-CIO ("Union"). The Union, challenging the discharge of Musser and Brachbill, filed a written grievance pursuant to the Collective Bargaining Agreement ("Agreement") in force between Centre County and the Union. The parties met in conference, as required by the Agreement; but the Prison Board affirmed its decision to terminate the two guards, citing the employee discipline provisions of the Agreement.

Article IV of the Agreement sets forth the general proposition that all matters "of inherent managerial policy" are reserved exclusively to the County unless they have been expressly contracted away by some specific provision of the Agreement. This same Article also states: "The County shall have the right to discipline employees, including the right to suspend, lay off, demote and/or discharge employees for just cause." (Emphasis added.) However, the County's right to discipline or discharge employees is addressed more specifically by another part of the Agreement, Article XX.

Article XX, in the parts here pertinent, reads as follows:


Section 1: The sole right to discipline and discharge employees for just cause is retained by the County. The County will follow principles of correcting discipline with respect to minor offenses; that is, a written warning for first offense; disciplinary layoff for second offense; and discharge for the third offense. If an employee believes he or she has been disciplined without just cause, he may file a grievance within five (5) days of date of discipline. The first written warning may be withdrawn within one year, unless during such year the employee receives another warning.

Section 2: The following are grounds for immediate dismissal, which are not subject to arbitration, except insofar as Section 4 of this Article XX is applicable:

[ 519 Pa. Page 386]

    a) Drinking of alcoholic beverages or using drugs during working hours, or reporting for work under the influence of alcohol or drugs.

     b) Commission of physical ...

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