                                                           NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                      No. 05-1095
                                      ___________

                               DAVID K. MCMULLIN,
                                         Appellant


                                           v.

BOB CRANMER, individually and as a Commissioner of the Allegheny County Board of
Commissioners; MIKE DAWIDA, individually and as a Commissioner of the Allegheny
county Board of Commissioners; LARRY DUNN, individually and as a Commissioner of
     the Allegheny County Board of Commissioners; COUNTY OF ALLEGHENY
                                   ___________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE WESTERN DISTRICT OF PENNSYLVANIA

                                (D.C. No. 99-cv-01959)
                  District Judge: The Honorable William L. Standish
                                    ___________

                            ARGUED OCTOBER 21, 2005

            BEFORE: SMITH, BECKER, and NYGAARD, Circuit Judges.


                             (Filed: December 23, 2005)
                                     ___________

James T. Carney, Esq. (ARGUED)
Spilman, Thomas & Battle
301 Grant Street
One Oxford Centre, Suite 3440
Pittsburgh, PA 15219
              Counsel for Appellant
Caroline P. Liebenguth, Esq. (ARGUED)
Office of Allegheny County Law Department
445 Fort Pitt Boulevard
300 Fort Pitt Commons Building
Pittsburgh, PA 15219
              Counsel for Appellee

                                       ___________

                               OPINION OF THE COURT
                                    ___________


NYGAARD, Circuit Judge

                                             I.

              The District Court granted summary judgment in favor of Allegheny

County on Appellant McMullin’s wrongful discharge claim. The District Court later

entered judgment on a verdict in favor of defendants on McMullin’s 42 U.S.C. § 1983

claims following a jury trial. McMullin raises three issues on appeal. McMullin argues

that the District Court erred by granting the County summary judgment on his claim that

he was improperly discharged by County Manager Cannon because the Commissioners

had not consented to his termination. He also contends that the District Court erred by

excluding evidence that his position was a state mandated position and evidence by which

he intended to show that he was terminated as part of a purge of Dunn supporters.

Finally, McMullin appeals the District Court’s refusal to charge the jury that the Director

of Veterans’ Affairs position was required by the Second Class County Code, 16 P.S. §

5123. We will affirm.


                                             2
                                            II.

              The authorization that granted the County Manager power to terminate with

the consent of the County Commissioners specifies neither when nor how consent must

be given. Consequently, even though their consent came post-termination, it was proper.

Furthermore, personnel matters are administrative functions and may be properly

delegated by elected County Commissioners. See DeFrank v. County of Greene,

412 A.2d 663 (Pa. Commw. Ct. 1980).

              Under Pennsylvania law, McMullin was an at-will employee. Pennsylvania

law generally does not recognize a cause of action for termination of an at-will

employment relationship. The Pennsylvania Supreme Court has “steadfastly resisted any

attempt to weaken the presumption of at-will employment in this Commonwealth.”

McLaughlin v. Gastrointestinal Specialists, Inc., 750 A.2d 283, 290 (Pa. 2000). Courts

have recognized exceptions only for implied contract claims based on representations

made in an employee handbook and for public policy claims. Stumpp v. Stroudsburg

Mun. Auth., 658 A.2d 333 (Pa. 1995). The District Court found no evidence to show that

either exception applied to McMullin. Indeed, there is evidence in the record that

McMullin was terminated due to budget constraints.1


1.      At the time of McMullin’s termination in December 1997, Allegheny County was
dealing with a fiscal crisis because expenditures exceeded revenues and a reduction in its
bond rating which indicated instability to investors and made it more expensive for the
County to borrow money. County government decided to reduce costs to balance the
budget, and since unfunded personnel were one of the greatest costs for the County, it
                                                                             (continued...)

                                             3
              Next, the section of the Second Class County Code allegedly violated with

regard to McMullin’s official discharge document does not entitle him to bring a private

right of action for wrongful termination. Instead, this section addresses the execution of

official instruments and mentions neither County employees nor the termination of

County employment. See 16 P.S. § 3503. Hence, the District Court properly granted

summary judgment on this claim.

              At the trial on McMullin’s § 1983 claims, the District Court properly

excluded as irrelevant evidence that Pennsylvania law mandates that the position of

Director of Veterans’ Affairs always be filled. The record does not show that any County

employee involved in McMullin’s termination even knew the statute existed. The

exclusion of this evidence was well within the discretion afforded to the trial court under

Fed. R. Evid. 402.2




1.       (...continued)
terminated a number of employees (approximately 80 to 100 in the fall of 1997 alone).
“Unfunded” positions were those positions not subsidized by the state or federal
governments but instead funded from County taxes. “Funded” positions were those paid
for by either the state or federal government which approved a particular project and
needed personnel to staff it. Obviously, eliminating funded positions would not increase
County revenue but eliminating unfunded positions would. Certain areas of the County
government saw personnel increase (i.e., Allegheny County Jail) while other areas saw
personnel decrease (i.e., Division of Veterans’ Affairs). See generally Joint Appendix
388-404 (Direct and cross examination of Mr. Carmen Torockio, former Allegheny
County Budget Director, describing how the County planned to reduce the deficit by
reducing unfunded personnel).

2.     Judge Becker believes that this evidence was relevant but that its exclusion was
harmless error.

                                             4
              Testimony by McMullin and Commissioner Dunn alleging that Dunn

supporters were terminated because of their political affiliation was properly excluded.

Such evidence could arguably be relevant, but McMullin’s proffer was inadequate to

support his contention that this evidence should have been introduced to the jury.

McMullin sought to introduce evidence that only a handful of employees were terminated

for political reasons, when as many as 1,000 employees left their jobs in all. Furthermore,

McMullin did not sufficiently explain the link between the employees’ political affiliation

and their termination. Last, McMullin’s proffered testimony from Dunn, lacking any

specifics, was vague and without a proper foundation. Therefore, the District Court acted

within its discretion in excluding the evidence.

                                            III.

              We conclude that summary judgment was properly granted to Allegheny

County on McMullin’s wrongful discharge claim and that the evidence he sought to

introduce at trial on his § 1983 claims was properly excluded. The order of the District

Court will be affirmed.




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