Bogdanovic v. Swatara Township

23 Pa. D. & C.3d 115, 1982 Pa. Dist. & Cnty. Dec. LEXIS 321
CourtPennsylvania Court of Common Pleas, Dauphin County
DecidedApril 28, 1982
Docketno. 4136 S and 4137 S of 1981
StatusPublished

This text of 23 Pa. D. & C.3d 115 (Bogdanovic v. Swatara Township) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Dauphin County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bogdanovic v. Swatara Township, 23 Pa. D. & C.3d 115, 1982 Pa. Dist. & Cnty. Dec. LEXIS 321 (Pa. Super. Ct. 1982).

Opinion

DOWLING, J.,

Does the issuance of a letter of reprimand to a police officer entitle him to a hearing? Officers Bogdanovic and Vernouski of the Swatara Township Police Department were given letters of reprimand for alleged misconduct in two unrelated incidences. Their appeals to the court have been met with motions to quash.

It is contended on behalf of the petitioners that the action was unjust, unfair and arbitrary in that the violations of the department rules and regulations were not supported by competent evidence and they were not given a proper hearing* as required by applicable statutes and mandated by constitutional requirements of due process. Respondents take the position that no legal right to appeal exists, since the action was not an adjudication as required by applicable statutes.

The court held a hearing and received testimony limited to the question of the appealability of the issue and heard evidence as to the purpose and effect of letters of reprimand.

[116]*116The appeals are filed pursuant to Subchapter B of Chapter 7, Section 752 of the Local Agency Law (2 Pa.C.S.A. §752) which reads as follows:

“§752 Appeals

Any person aggrieved by an adjudication of a local agency who has a direct interest in such adjudication shall have the right to appeal therefrom to the court vested with jurisdiction of such appeals by or pursuant to Title 42 (relating to judiciary and judicial procedure).”

In addition, petitioners aver that the appeals were also filed pursuant to Subchapter C of Chapter 9, Section 933(a)(2) of the Judicial Code, (42 Pa.C.S.A. §933(a)(2)) which states:

“933. Appeals from government agencies

(a) General Rule. Except as otherwise prescribed by any general rule adopted pursuant to Section 503 (relating to assignment of the matters), each court of common pleas shall have jurisdiction of appeals from final orders of government agencies in the following cases:

(2) Appeals from government agencies, except Commonwealth agencies, under Subchapter B of Chapter 7 of Title 2 (relating to judicial review of local agency action) or otherwise.”

Both of the above quoted statutes indicate that an appeal is proper only where the local agency has issued an adjudication or a final order.

The Local Agency Law defines an adjudication as:

“Any final order, decree, decision, determination or ruling by an agency affecting personal or property rights, privileges, immunities, duties, liabilities or obligations of any or all of the parties to the [117]*117proceeding in which the adjudication is made.” 2 Pa.C.S.A. §101.

The narrow question, thus, is whether or not a reprimand is an adjudication within the meaning of the Local Agency Law. Is there any affect on ones personal or property rights by receiving a letter of reprimand? It is clear that no direct action resulted, i.e. suspension, reduction in rank or discharge. At the hearing, Officer Bogdanovic testified that he understood such a letter to have an accumulative effect, i.e. another incident could result in a more extreme form of discipline, for example, suspension and that on promotion ones entire record was looked into. He did admit that he was not aware of any instance where promotion was denied because of such a letter.

Another officer, Robert Malley, who had been on the force for five years said that approximately two-and-one-half years ago he had received a letter of reprimand and then a year later he received a second letter along with a one-day suspension; although he could not say that the first letter played any part in the suspension.

The Chief of Police, Robert Walmer, testified that he had been a township police officer for over 28 years. He could recall a number of incidences where officers who had received letters of reprimand were subsequently promoted and said that such letters, in his opinion, played no part in the decision making process of promotion. He knew of no instance where a patrolman had been denied a promotion because of a letter of reprimand.

Nicholas Dinnini, a township Commissioner and member of the Police Committee said that he was personally involved in Officer Malley’s suspension and that the previous letter of reprimand had not [118]*118even been brought to their attention and, thus, played no part whatsoever. He said he had also been involved in other disciplinary actions and could recall no case where the officer’s record was even brought to the attention of the committee, and that all actions taken were solely on the merits of the particular case before them. It was also his opinion that such letters did not play a substantial part in the decision to promote or transfer.

A fair summary of the testimony would be that no evidence was presented to demonstrate that a letter of reprimand had any affect on subsequent disciplinary action; although there was evidence that it may have some affect on promotion.

Is this rather indefinite and speculative effect, such as could be considered affecting the personal or property rights within the definition of “Adjudication?” It has been held that no personal or property right adheres to promotion: Marvel v. Dalrymple, 38 Pa. Commonwealth Ct. 67, 393 A. 2d 494 (1978). In Marvel, a township police officer who had taken a promotional examination and suspected irregularities in the exam, requested information concerning it, including all the materials submitted by his superior officers. The Commonwealth Court, upholding the lower court’s determination excepting from discovery by the officer rating sheets, evaluations by superior officers, and physicians’ reports, stated: (p. 72)

“As the Commission has structured its argument, the materials sought by appellant cannot be a public record because he cannot assert a personal or property right or privilege in a promotion to the rank of sergeant.

Insofar as the major premises is concerned, this is a proper statement of the law. No right, as such, [119]*119adheres to promotion. McGrath v. Staisey, 433 Pa. 8, 249 A. 2d 280 (1968); Bobick v. Fitzgerald, 416 Pa. 588, 207 A. 2d 878 (1965); Eckert v. Buckley, 23 Pa. Commonwealth Ct. 82, 350 A. 2d 417 (1976).”

The disciplinary and promotional relationships involving First Class Townships and their police forces come within the statutory framework provided by the legislature [(First Class Township Code, Art. VI (d) Section 625-650; 53 P.S. Section 55625-55650)]. These sections make provisions for the examinations of police officers (Sec. 635), the manner of filling appointments (Sec. 638), the promotion of officers (Sec. 642), the suspension, removal or reduction in rank of officers (Sec. 644), and the hearings on suspensions, dismissals and removals of officers (Sec. 645). It should be noted that the legislature has determined that only in situations involving suspension, removals or reductions in ranks shall a hearing be afforded. Petitioners would have the court read into this statutory scheme the requirement for a hearing in regard to a letter of reprimand in a situation where the legislature clearly did not include such action as a basis for requiring a hearing.

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Related

Zimmerman v. City of Johnstown
365 A.2d 696 (Commonwealth Court of Pennsylvania, 1976)
Marvel v. DALRYMPLE
393 A.2d 494 (Commonwealth Court of Pennsylvania, 1978)
McGrath v. Staisey
249 A.2d 280 (Supreme Court of Pennsylvania, 1968)
Bobick v. Fitzgerald
207 A.2d 878 (Supreme Court of Pennsylvania, 1965)
Eckert v. Buckley
350 A.2d 417 (Commonwealth Court of Pennsylvania, 1976)

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Bluebook (online)
23 Pa. D. & C.3d 115, 1982 Pa. Dist. & Cnty. Dec. LEXIS 321, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bogdanovic-v-swatara-township-pactcompldauphi-1982.