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BELL v. FLOOD (04/16/73)

decided: April 16, 1973.

BELL
v.
FLOOD



Appeal from the Order of the Court of Common Pleas of Washington County, in case of Appeal of William A. Flood from Decision of Civil Service Commission of the Borough of Canonsburg, No. 304 March Term, 1972.

COUNSEL

Oliver N. Hormell, with him Hormell, Tempest, Simmons, Bigi & Melenyzer, for appellant.

Daniel W. Cooper, with him Stanford A. Segal, and Gatz, Cohen, Segal and Koerner, for appellee.

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

Author: Kramer

[ 8 Pa. Commw. Page 424]

This is an appeal from an order of the Court of Common Pleas of Washington County reversing an order of the Civil Service Board (Board) of the Borough of Canonsburg (Borough) which had sustained the Borough Council's suspension of William A. Flood (Flood), the Chief of Police of the Borough. Council had suspended Flood for a period of five days, and thereby dismissed the balance of a 30-day suspension given to Flood by Louis R. Bell, Jr. (Bell), the Mayor of the Borough. The facts are garnered from the briefs and the opinion of the court below.*fn1 On or about November

[ 8 Pa. Commw. Page 4251]

, 1971, Flood advised the Mayor that he intended to make changes in the team assignments of patrolmen of the Borough police force. Shortly thereafter, the Mayor ordered Flood to withhold making such team changes until the Mayor could meet with the patrolmen to ascertain their reasons for requesting changes in assignment. Having waited about six weeks after the Mayor's order, during which time the Mayor did not meet with the patrolmen as he had indicated was his intention, the Chief made the changes in team assignments. The Mayor determined that this was disobedience of his orders and, by letter dated December 10, 1971, suspended Flood for a period of 30 days. The next Borough Council meeting was held on December 13, 1971, at which meeting the subject of Flood's suspension was not discussed. On that same date, December 13, 1971, the Mayor by letter reinstated Flood and postponed his suspension of 30 days until January 2, 1972. At its next meeting, held January 10, 1972, Borough Council took up the matter of the suspension and upheld the suspension of Flood for a period of five days and dismissed the balance. Apparently, at the date of the Council meeting (January 10, 1972), Flood had already served five days of his suspension. Flood took an appeal to the Civil Service Board, and on May 3, 1972, the Board sustained the action of Borough Council. Flood then took an appeal to the court below, which apparently did not take or receive any additional testimony or evidence. The court below determined that the Board had committed error in its findings, and reversed its adjudication, thereby restoring to Flood his prior status, and all lost wages and salary. Bell filed exceptions, and a court en banc was impaneled to hear argument. One of the three judges disqualified himself, and the remaining two judges were evenly divided. The effect of this evenly divided court was to

[ 8 Pa. Commw. Page 426]

    affirm the original decision of the hearing judge. Bell then appealed to this Court.

The question of law presented to us by the parties is whether the mayor or the chief of police of a borough has the primary authority to make changes in the team assignments of borough patrolmen; and secondly, if the mayor has such primary authority, could he suspend the chief for disobeying an order, if the chief acted as Flood did in this case.

The pertinent statutory authority of borough councils and mayors with regard to control of police chiefs and the police is found in Section 1121 of The Borough Code, Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. ยง 46121, which reads in pertinent part as follows:

"The borough council may designate one of said policemen as chief of police. The mayor of the borough shall have full charge and control of the chief of police and the police force, and he shall direct the time during which, the place where and the manner in which, the chief of police and the police force shall perform their duties, except that council ...


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