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JAMES ELMER v. BOARD COMMISSIONERS WILKINS TOWNSHIP (01/10/89)

decided: January 10, 1989.

JAMES ELMER, AN INDIVIDUAL, APPELLANT
v.
BOARD OF COMMISSIONERS OF WILKINS TOWNSHIP, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of James Elmer, an individual v. Board of Commissioners of Wilkins Township, No. S.A. 1947 of 1985.

COUNSEL

Ronald P. Koerner, Gatz, Cohen, Segal & Koerner, for appellant.

Charles M. Means, with him, John M. Means, Markel, Schafer & Means, P.C., for appellee.

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

Author: Palladino

[ 122 Pa. Commw. Page 517]

James Elmer (Appellant) appeals an order of the Court of Common Pleas of Allegheny County (trial court) affirming the decision of the Board of Commissioners of Wilkins Township (Board) to deny Appellant permanent employment. We affirm.

Appellant was employed as a police officer by Wilkins Township on July 2, 1984. Pursuant to section 640 of The First Class Township Code (Code),*fn1 he was employed in a probationary capacity for a period of one year. By letter dated May 28, 1985 the Township Chief of Police recommended to the Board that Appellant not be retained on a permanent basis. The letter stated that the Police Chief found Appellant's performance less than acceptable in that he was neglectful and disobedient of orders. Township Exhibit No. 3.

[ 122 Pa. Commw. Page 518]

At a public meeting held on June 10, 1985, the Board voted not to retain Appellant as a permanent employee. Appellant was not present at the meeting, but written notice of the Board's decision was delivered to him later on June 10th. Township Exhibit No. 2. By letter dated June 12, 1985, Appellant requested a hearing before the Board. Joint Exhibit No. 1. Appellant was kept on the payroll and continued to receive his full salary plus fringe benefits until July 2, 1985, the date on which his probationary appointment expired.

A hearing was held before the Board on August 14, 1985 at which the Police Chief's letter of May 28th and the Board's minutes of the June 10th meeting were introduced into evidence. Township Exhibits Nos. 1, 3. Although the Police Chief was present at the hearing, neither party called him as a witness. By decision dated October 14, 1985, the Board dismissed Appellant's appeal. Appellant appealed to the trial court, which affirmed the decision of the Board by order dated December 10, 1987.

On appeal to this court, Appellant presents two issues for our review: (1) whether the Board violated Appellant's due process rights by failing to present evidence at the hearing to support its determination, based upon the Police Chief's evaluation, that Appellant's job performance was unsatisfactory; and (2) whether the Board violated Appellant's due process rights by failing to conduct a pre-termination hearing.

Burden of Proof

Section 640 of the Code provides in ...


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