Cullura v. School District of Bristol Township

DOYLE, Judge. This is an appeal1 by Joseph Cullura from an order of the Court of Common Pleas of Bucks County which denied Cullura’s appeal from a decision of the Bristol Township School Board (Board) terminating him as a nonprofessional employee. The following facts are pertinent. Cullura had been employed by the School District as the substitute maintenance person. By letter dated January 19, 1990 he was informed that the Board had approved his appointment to the position of General Maintenance I to become effective on January 22, 1990. After the appointment was made the [638] Transport Workers’ Union of America (Union) filed a grievance alleging that under the relevant provisions of the collective bargaining agreement another employee with greater seniority than Cullura, one Cormack Bryant,2 should have been given the position. The Union’s grievance was upheld at the first level by the School District and no appeal was taken from that determination. As a result of that grievance procedure Bryant was given the position that Cullura had held and Cullura was notified by letter dated February 16, 1990 of his termination effective March 2, 1990.3 On March 5, 1990 Cullura requested a hearing before the Board on his termination. His request was denied. Thereafter, he filed an action in mandamus together with a motion for peremptory judgment seeking a court order directing that the Board hold a hearing. The Court of Common Pleas of Bucks County by an order dated April 10, 1990, granted Cullura’s motion and the Board conducted a hearing on May 2, 1990. After the hearing, the Board issued an adjudication in which it determined that Cullura was properly terminated. Cullura appealed to the common pleas court which affirmed the Board’s termination. Further appeal to this Court followed. While on appeal Cullura alleges numerous errors which go to the merits of the case, we find that we are unable to reach these issues because we note that Bryant did not have the opportunity to participate in Cullura’s termination hearing. In Jefferson County Assistance Office, Department of Public Welfare v. Wolfe, 136 Pa. Commonwealth Ct. 115, 582 A.2d 425 (1990), this Court held that a successful promotion candidate was an indispensable party whose due process rights were violated by the failure to provide that individual with the opportunity to participate in the non-selectee’s hearing. We raised the issue sua sponte there, as we do here, because where a party is [639] indispensable to the litigation and is not joined there is a subject matter jurisdiction defect. Id. Our decision in Jefferson County relied upon Riddick v. Cuyler, 523 F.Supp. 258 (E.D.Pa.1981), for the proposition that a civil servant has a property interest in his or her position and cannot be removed without due process. What we did not do, however, in Jefferson County was distinguish McGrath v. Staisey, 433 Pa. 8, 249 A.2d 280 (1968), and Appeal of Austerlitz, 63 Pa. Commonwealth Ct. 140, 437 A.2d 804 (1981). In both of those cases the respective courts held that where an individual challenges his non-selection for promotion the public employee whose promotion is being challenged is not an indispensable party to the litigation. We now take the opportunity to explain the seeming inconsistency between McGrath/Austerlitz and Jefferson County. First, it should be noted that McGrath and Austerlitz were grounded only upon the rights given by the various state statutes involved. In other words there was no general due process challenge present in those cases. In McGrath the non-selectee’s rights were grounded only in Section 1516 of the Second Class County Code, Act of July 28, 1953, P.L. 723, as amended, 16 P.S. § 4516. In Austerlitz the non-selectee’s rights were grounded only in Section 645 of The First Class Township Code, Act of June 24,1931, P.L. 1206, as amended, 53 P.S. 55645.4 The primary basis for our decision in Jefferson County and our determination today to adhere to the holding first espoused in that case, however, is the broadening of due process rights as recognized by the federal courts. As noted previously, Riddick recognized that a civil servant has a property interest in his or her position and cannot be removed without due process. Accord Abraham v. Pekarski, 728 F.2d 167 (3d Cir.1984), cert. denied, 467 U.S. 1242, 104 S.Ct. 3513, 82 L.Ed.2d 822 (1984). Whether because of the necessity of a reduction in force or due to merit factors, [640] Cullura was, in fact, removed from his position and he alleges the right to challenge that decision in a due process setting under Section 514 of the Public School Code of 1949 (School Code), Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 5-514.5 If his challenge were successful, Bryant would in all likelihood be terminated. Since Bryant’s rights are threatened by the merits of this litigation and justice cannot be afforded without violating his due process rights, Jefferson County, we conclude that he is an indispensable party to this litigation. Accordingly, based upon the above discussion, the order of the Court of Common Pleas of Bucks County is vacated and this case is remanded to allow Cullura to take the necessary steps to join Bryant in this litigation. See Patwardhan v. Brabant, 294 Pa. Superior Ct. 129, 439 A.2d 784 (1982).6 ORDER NOW, May 5, 1992, the order of the Court of Common Pleas of Bucks County in the above-captioned matter is hereby vacated and this case is remanded for further proceedings consistent with this opinion. Jurisdiction relinquished. This decision was reached and opinion adopted before the conclusion of Senior Judge BARBIERI’s service. Footnotes [1] This case was reassigned to the opinion writer on March 3, 1992. [2] This individual’s name is also spelled "Carmark" Bryant in the notes of testimony. We are unable to tell which spelling is correct. [3] Later, in a March 9, 1990 letter, Cullura was informed that this termination was actually a reduction in force due to the resolution of the grievance. [4] Section 645 was added by Section 20 of the Act of May 27, 1949, P.L.1955. [5] We recognize that state law determines whether a property interest exists in retaining a given governmental job. Brown v. Trench, 787 F.2d 167 (3d Cir.1986). The Board asserts that Section 514 does not grant any rights to Cullura. It, however, failed to appeal from the common pleas court’s order granting mandamus. As to the Board that order was final as it put the Board out of court. See Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978). Hence, the Board has waived this argument and we need not decide it. See Matter of Franklin Township Board of Supervisors, 475 Pa. 65, 379 A.2d 874 (1977). We, thus, assume, for purposes of this case, that the School Code afforded Cullura certain due process rights. [6] We point out to the parties that if Bryant declines to participate in the litigation after being given the opportunity to do so the case then can proceed without him as the joining of the individual cures the due process problem. See Jefferson County, 136 Pa.Commonwealth Ct. at 118-19 n. 2, 582 A.2d at 427 n. 2.