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BRENCKLE v. SHALER TOWNSHIP (10/13/71)

decided: October 13, 1971.

BRENCKLE, ET AL.
v.
SHALER TOWNSHIP



Appeal from the Decree and Judgment of the Court of Common Pleas of Allegheny County at No. 965, July Term, 1970, in case of Charles Brenckle, James Christy, Paul Christy, Edward Duss, Gesward DeStefano, Jeffrey Gally, Arthur Geyer, Theodore Golembiewski, John Hickinbottom, Louis J. Bieber, Ralph Hoffman, Leo Kandzer, Joseph Kurpiewski, Laurence J. Kusluch, Edward Lenkiewicz, Donald R. O'Connor, Louis Palajsa, John Reiber, Harry Schweitzer, Donald Wagner and Richard West v. Township of Shaler.

COUNSEL

Ronald P. Koerner, with him Gatz, Cohen and O'Brien, for appellants.

Ralph H. German, Shaler Township Solicitor, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by Judge Wilkinson. Opinion by Judge Kramer (Concurring in Part and Dissenting in Part). Judge Manderino joins in dissent.

Author: Wilkinson

[ 3 Pa. Commw. Page 350]

This is an action in Equity to enjoin the enforcement of a Resolution of the defendant, a first-class township, which prohibited outside employment of police officers other than on their "days off, holidays, or vacations". The plaintiffs were 21 full-time police officers who asked the court to grant a preliminary injunction as well as a permanent injunction. The court initially granted the preliminary injunction but after full hearing, filed an adjudication and decree nisi sustaining the Resolution and dismissing the complaint and injunction. This was affirmed by the court en banc. This appeal followed.

It seems appropriate to observe here that the court below afforded the plaintiffs every protection while they pursued what they conceived to be their legal rights. The Resolution was adopted on April 17, 1970, to take effect May 1, 1970. The complaint was filed on May 1, 1970, and Judge Bolte granted a preliminary injunction. When he dismissed the complaint and injunction, he modified the effective date of the Resolution to be October 1, 1970. Thereafter, when the court

[ 3 Pa. Commw. Page 351]

    en banc affirmed that decision and entered a final decree on October 21, 1970, it made the Resolution effective immediately. Nevertheless, on November 5, 1970, when this appeal was filed, Judge Bolte granted a supersedeas and delayed the enforcement of the Resolution with respect to those police officers who had employment at the beginning of the suit until the case was disposed of by this Court.

We must affirm the decision of the court below, sustaining the validity of the Resolution and dismissing the complaint and application for injunction.

This is a case of first impression in Pennsylvania, but there are cases squarely on point in many jurisdictions which sustain the Resolution. These cases are collected and discussed in an annotation entitled "Public Employe -- Outside Occupation", appearing in 88 A.L.R. 2d 1235 (1963). Section 3 of the Annotation is devoted to police officers. The lower court has analyzed these cases in its opinion and no good purpose would be served by repeating the analysis here. Suffice it to say that cases from New Jersey, New York, Illinois, Iowa, Oregon, and Texas all have approved laws, most of which prohibit outside employment for a police officer at any time. The Resolution here in question is much less restrictive since it permits outside employment on the two days a week off, on holidays, and during vacations.

Plaintiffs' principal argument is that townships are creatures of the Legislature and are limited in power to do only those things "expressly" authorized. See Trevorton Water Supply Co. v. Zerbe Township, 259 Pa. 31, 102 A. 328 (1917). Without disagreeing with or disapproving of that principle, we find that the First Class Township Code, in at least two places, authorizes such a provision:

"The board of township commissioners shall, subject to the civil service provisions of this act, appoint

[ 3 Pa. Commw. Page 352]

    and fix the number, rank and compensation of the members of the township police force. . . . The board of commissioners shall prescribe all necessary rules and regulations for the organization of the police force. . . ." Act of June 24, 1931, P.L. 1206, Art. XIV, § 1401, as amended, 53 P.S. § 56401.

"To establish, equip and maintain a police force, and to define the duties of the same." Act of June 24, 1931, P.L. 1206, Art. XV, § 1502, cl. V, as amended, 53 P.S. § 56505.

The other argument pressed by plaintiffs is that the Resolution is an arbitrary, unreasonable, and unnecessary restriction upon the plaintiffs' constitutional rights. While the argument which would properly be made before the Township Commissioners against the wisdom of such a Resolution would be persuasive, the legal justification for it is clear. Probably the clearest statement of the justification for putting police officers in a separate category was presented recently by Justice Roberts: "As we have just pointed out in Baxter v. Philadelphia, 426 Pa. 240, 231 A.2d 151 (1967) the duties of and interests protected by police are of a sufficiently distinct character from those of other governmental employees to justify different terms of employment. More specifically, the special hazards to which policemen's duties expose them and the greater physical fitness which policemen need to adequately discharge their duties lead us to conclude that the Legislature was well within the bounds of reasonable and constitutionally permissible classification in allowing police to become eligible for retirement allowances at an age five years younger than that of other Allegheny County employees. See Iben v. Monaca Borough, 158 Pa. Superior Ct. 46, 43 A.2d 425 (1945)." Geary v. Allegheny County Retirement Board, 426 Pa. 254, 259-60, 231 A.2d 743, 746 (1967).

[ 3 Pa. Commw. Page 353]

Plaintiffs argue that it is improper to change the conditions of their employment now that they are on the force. This argument must fall by the weight of the decision of the Supreme Court of Pennsylvania in Kelly v. Jones, 419 Pa. 305, 214 A.2d 345 (1965). In that case the court, speaking through the late Justice Musmanno, upheld the right of the Legislature to change conditions of employment and quoted from the Teachers' Tenure Act Cases, 329 Pa. 213, 197 A. 344 (1938), wherein it was said: "The policemen and firemen, on the other hand, are not in a position to object to a change of their status by subsequent enactments." Teachers' Tenure Act Cases, supra, at 228, 197 A. at 354.

It is important to note, as Judge Bolte did, that this Resolution does not preclude any outside employment by police officers. The officer is free to work on his two days' off each week, on holidays, and on his vacation. Whether a complete prohibition would be an unreasonable ...


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