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CURRY v. PENNSYLVANIA TURNPIKE COMMN.

February 9, 1994

JAMES CURRY
v.
PENNSYLVANIA TURNPIKE COMMISSION, et al.



The opinion of the court was delivered by: HARVEY BARTLE, III

 Bartle, J.

 Plaintiff, James Curry, has brought this federal civil rights action, pursuant to 42 U.S.C. § 1983, *fn1" against the Pennsylvania Turnpike Commission ("Commission"), and individual members of the Commission. *fn2" Plaintiff was employed by the Commission as a fare collector. Sometime in early April, 1992, he was terminated for misappropriating funds. Curry claims that his discharge violated his due process rights under the Fourteenth Amendment to the Constitution. *fn3" Before the court is defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

 To obtain summary judgment, the moving party must establish that no genuine issues of material fact remain in dispute. Celotex Corporation v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). An issue is "genuine" only if there is a sufficient evidentiary basis for a reasonable jury to find for the non-moving party. A factual dispute is "material" if it might affect the outcome of the action under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In deciding whether the summary judgment standard has been met, the evidence must be viewed in the light most favorable to the non-moving party. Mellon Bank Corp. v. First Union Real Estate Equity and Mortg. Invest., 951 F.2d 1399, 1404 (3d Cir. 1991).

 Defendants contend that plaintiff had no property interest in his employment and therefore was not entitled to due process under the Constitution. Procedural due process requirements apply only when one is deprived of a property or other interest encompassed by the Fourteenth Amendment. Board of Regents v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). To have a property interest in employment, an individual must have more than an abstract need or desire or unilateral expectation of the benefit. He must have a legitimate claim of entitlement to it. Id. Generally, such an entitlement to continued employment may arise from a statute, ordinance or contract. See Perry v. Sindermann, 408 U.S. 593, 601-02, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972); Stana v. School Dist., 775 F.2d 122, 125 (3d Cir. 1985). However, in all cases, state law governs the existence of a property interest. Roth, 408 U.S. at 577-78; Bishop v. Wood, 426 U.S. 341, 344, 48 L. Ed. 2d 684, 96 S. Ct. 2074 (1976). Once a property interest is determined to exist, federal law governs the adequacy of the procedures employed to protect it. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985).

 Plaintiff, a union member, alleges that his property right arises from a "just cause" provision in his collective bargaining agreement. Specifically, Article XXIV of the agreement provides in relevant part:

 
Except as otherwise provided in this agreement, the Commission shall not discharge or discipline any employee without just cause . . . . In all cases involving the discharge or disciplinary action of an employee, the Commission shall notify the employee in writing of the reason for his discharge or discipline. Such written notice shall also be given to the appropriate job steward and a copy mailed to the Local Union Office within five (5) working days from the time of the discharge or disciplinary action. *fn4"

 Defendants contend that under Pennsylvania law, a property interest in employment may only be created by legislative enactment and may not arise from a contract or collective bargaining agreement. They rely for this proposition on Scott v. Philadelphia Parking Authority, 402 Pa. 151, 166 A.2d 278 (Pa. 1960). In Scott, plaintiff alleged that he was due money under a three year employment contract with the Philadelphia Parking Authority. The Pennsylvania Supreme Court found that the contract was invalid and unenforceable because the Authority lacked the power to enter into it. The court held that a public employer may not abrogate the general rule that public employees are employees at will without a legislative grant of authority to do so. Id. at 281. Subsequent Pennsylvania cases relying on Scott have held that a public employee does not have a property interest in continued employment unless the public employer had legislative authority to confer such an interest. See Bolduc v. Board of Supervisors, 152 Pa. Commw. 248, 618 A.2d 1188 (Pa. Commw. Ct. 1992); Pagano v. Pennsylvania State Horse Racing Com., 50 Pa. Commw. 499, 413 A.2d 44 (Pa. Commw. Ct. 1980), aff'd 374 Pa. Supper. 265, 542 A.2d 1015 (Pa. 1982).

 Where a grant of legislative authority exists, however, an employment contract may create a property interest. See, e,g,, Filice v. Dept. of Labor & Industry, 155 Pa. Commw. 347, 625 A.2d 148, 152 (Pa. Commw. Ct. 1993); Pennsylvania Social Services Union v. Dept. of Labor & Industry, 105 Pa. Commw. 264, 524 A.2d 1005, 1007 (Pa. Commw. Ct. 1987). In this case, such a grant of authority can be found in the Public Employee Relations Act. ("PERA"), 43 Pa. Cons. Stat. Ann. § 1101.101, et seq., which authorizes and regulates collective bargaining between public employers and employees. *fn5" Specifically, § 1101.701 titled "Matters subject to bargaining," provides:

 Collective bargaining is the performance of the mutual obligation of the public employer and the representative of the public employees to meet at reasonable times and confer in good faith with respect to wages, hours and other terms and conditions of employment, or the negotiation of an agreement or any question arising thereunder and the execution of a written contract incorporating any agreement reached but such obligation does not compel either party to agree to a proposal or require the making of a concession.

 It is now well settled in Pennsylvania that the PERA authorizes public employers to enter into collective bargaining agreements containing "for-cause" provisions and other limitations on the ability to dismiss employees summarily. See, e.g., Board of Education v. Philadelphia Federation of Teachers, 464 Pa. 92, 346 A.2d 35 (Pa. 1975); Bolduc v. Board of Supervisors, 152 Pa. Commw. 248, 618 A.2d 1188 (Pa. Commw. Ct. 1992). The Court of Appeals of this Circuit has suggested that a collective bargaining agreement may give rise to a property interest in employment under Pennsylvania law. In Sanguigni v. Pittsburgh Board of Public Educ., 968 F.2d 393, 401 (3d Cir. 1992), that Court affirmed the dismissal of plaintiff's due process claim because plaintiff had not alleged that her collective bargaining agreement contained a "for-cause" provision. The Court stated:

 See also Unger v. National Residents Matching Program, 928 F.2d 1392, 1399 (3d Cir. 1991). See also Smith v. Pittsburgh, 585 F. Supp. 941, 945 (W.D. Pa. 1984), rev'd on other grounds, 764 F.2d 188 (3d Cir. 1985).

 Sasko v. Charleroi Area School District, 121 Pa. Commw. 220, 550 A.2d 296 (Pa. Commw. Ct. 1998), relied on by the defendants, does not support the proposition that a collective bargaining agreement cannot create a property interest. To the contrary, in that case, the court assumed that such an interest could arise but found the agreement's specific language insufficient to create a property right. The contract did not hinge termination on a finding of just cause, but merely delineated procedures to be followed prior to termination. Id. at 299. In this case, the collective bargaining agreement at issue specifically states that an employee may not be discharged except "for cause." In light of the fact that such contract provisions are now legislatively authorized in Pennsylvania, this court finds ...


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