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YATZOR v. WASHINGTON TOWNSHIP COMMISSIONERS (04/27/72)

decided: April 27, 1972.

YATZOR
v.
WASHINGTON TOWNSHIP COMMISSIONERS



Appeal from the Order of the Court of Common Pleas of Erie County in case of Mike Yatzor v. Raymond Showman, Herbert Allen and Glenn Shields, Washington Township Commissioners, No. 596, September Term, 1967. Remanded to the Commonwealth Court of Pennsylvania by the Supreme Court of Pennsylvania on November 18, 1971.

COUNSEL

Louis Vaira, for appellant.

James F. Toohey, with him Quinn, Plate, Gent, Buseck and Leemhuis, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Kramer.

Author: Kramer

[ 5 Pa. Commw. Page 292]

The instant appeal is again before this Court as a result of a November 18, 1971, Order of the Supreme Court vacating an Order of this Court issued on July 30, 1971. This Court, on the latter date, quashed the appeal of Mike Yatzor (appellant) for the reason that the appeal was not timely filed. The Order of the Supreme Court vacating the Order of this Court included the instruction that we now hear the appeal upon its merits.

To facilitate an understanding of the issues herein involved, we find it useful to set forth a chronology and sequence of facts.

On April 9, 1962, appellant was hired by the Supervisors of Washington Township (appellees), Erie County, to serve in the capacity of part-time police officer. The Township did not pass a formal resolution confirming appellant's appointment. Appellant was paid on an hourly basis and served the Township in this part-time capacity until 1965. On January 9, 1965, the Township Supervisors passed a formal resolution hiring appellant to serve as a part-time police officer for the year 1965, at a salary of one hundred dollars per month. The record discloses that appellant pursued, concurrently, another vocation during the years 1962 through 1966. The court below properly found that appellant had "another employment" which was his "main source of income" and "which made him

[ 5 Pa. Commw. Page 293]

    unavailable for police work at least three, and sometimes four, days a week." Appellant owned a tractor which he leased to and drove for a motor freight company. This primary employment took him away from the Township regularly on trips which entailed as much as eight hours of driving time. It is fair to point out that throughout appellant's term of service he worked regularly as a policeman on Fridays, Saturdays and Sundays. On all other days, however, he accepted calls only at times when he was available, and this was with no regularity. The important point here is that the lower court properly found that he was ordinarily unavailable for police work "at least three and sometimes four days a week."

Appellant continued to serve in this manner until January 7, 1967, at which time he was informed that inasmuch as no motion had been made before the Township Supervisors extending his employment through 1967, his services were no longer "needed." No formal resolution of dismissal was passed by the Township Supervisors. In a letter to the Township Supervisors dated March 21, 1967, appellant requested a hearing on the matter of his dismissal. No hearing before the Supervisors was convened.

On August 3, 1967, appellant filed an appeal to the Court of Common Pleas, Erie County, based upon the Police Tenure Act, Act of June 15, 1951, P.L. 586, as amended, § 1 et seq., 53 P.S. § 811 et seq. On that same day the lower court ordered that there be issued a Rule to Show Cause why appellant should not be reinstated. An answer was filed, depositions were taken, briefs were filed, and the arguments were entertained by the court. Appellant complains that he was not given a formal hearing, but the record does ...


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