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LOWER MERION TOWNSHIP v. TURKELSON (03/23/61)

March 23, 1961

LOWER MERION TOWNSHIP
v.
TURKELSON, APPELLANT.



Appeal, No. 74, Jan. T., 1961, from order of Court of Common Pleas of Montgomery County, April T., 1958, No. 18, in case of Lower Merion Township v. Glenn A. Turkelson. Order affirmed.

COUNSEL

Frederick B. Smillie, for appellant.

Edmund B. Spaeth, Jr., with him John E. Forsythe, Township Solicitor, and Wright, Mauck & Spencer, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Jones

[ 403 Pa. Page 73]

OPINION BY MR. JUSTICE BENJAMIN R. JONES.

Glenn A. Turkelson, a member of the Lower Merion Township police department, on March 7, 1958 was suspended from duty on a charge of having failed to account for money received by him in his official capacity. After hearing, the Civil Service Commission of Lower Merion Township found Turkelson guilty of a violation of the Police Code of Discipline and directed that he be removed from the police force as of March 7, 1958. Turkelson then appealed to the Court of Common Pleas of Montgomery County and Judge GROSHENS of that court reversed the Commission's order and reinstated Turkelson as a police officer as of June 1, 1958 "with pay from that date." The Township appealed to this Court and we affirmed Turkelson's reinstatement as of June 1, 1958 (Lower Merion Township v. Turkelson, 396 Pa. 374, 152 A.2d 724).

Subsequent to the decision of this Court, Turkelson on July 9, 1959 reported for duty and then submitted his resignation as a police officer without prejudice. Turkelson then demanded that the Township pay him his salary of $5,534.03 from June 1, 1958 (the date of his reinstatement) to July 9, 1959 (the date of his resignation). The Township refused payment upon the ground that, during the period Turkelson was off the police force he had been employed by the Post Office Department at which employment he earned $5,690.60, and that such sum constituted a set-off against Turkelson's claim for salary.

On September 25, 1959, Turkelson filed a petition in the Court of Common Pleas of Montgomery County seeking to hold the Township Commissioners in contempt

[ 403 Pa. Page 74]

    for failure to obey the order of the court reinstating Turkelson "with pay from June 1, 1958..." On October 21, 1959, this petition was amended to a rule to show cause why Turkelson's salary should not be paid and, after answer thereto and argument thereon, the court dismissed Turkelson's petition and rule and from the court's action this appeal has been taken.

The only question before us is whether Turkelson was entitled to be paid his salary as a police officer during the period of his improper dismissal without the deduction of any moneys earned in other employment by him during the same period of time. In support of its position, the Township relies upon Vega v. Burgettstown Borough, 394 Pa. 406, 147 A.2d 620, wherein we held that, in an action by a Chief of Police against a municipality to recover salary for the period during which he was improperly dismissed, the municipality had the right to set off against such salary any amount earned by him in a private capacity during that period.

Turkelson's argument is two-fold: (1) that Vega does not control the instant factual situation and (2) if Vega does so control, Vega was erroneously decided and should be reconsidered and overruled.

In Vega, the statute*fn1 provided that in the event a policeman who had been suspended or removed should be reinstated, he "shall be reinstated with full pay for the period during which he was suspended." The First Class Township Law,*fn2 under the authority of which Turkelson was originally suspended and later reinstated, contains ...


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