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ROGER M. FISCHER v. LOUIS RZYMEK (08/06/74)

decided: August 6, 1974.

ROGER M. FISCHER, REGISTER OF WILLS AND CLERK OF THE ORPHANS' COURT DIVISION OF THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA, PLAINTIFF,
v.
LOUIS RZYMEK, WILLIAM O. HILL, JR., AND LEO P. WEIR, COMMISSIONERS FOR THE COUNTY OF ERIE, PENNSYLVANIA, AND AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, A.F.L.-C.I.O., DEFENDANTS. ROBERT GORDON KENNEDY, DISTRICT ATTORNEY FOR ERIE COUNTY, PENNSYLVANIA, PLAINTIFF, V. LOUIS RZYMEK, WILLIAM O. HILL, JR., AND LEO P. WEIR, COMMISSIONERS FOR THE COUNTY OF ERIE, PENNSYLVANIA, AND AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, A.F.L.-C.I.O., DEFENDANTS



Original jurisdiction in cases of Roger M. Fischer, Register of Wills and Clerk of the Orphans' Court Division of the Court of Common Pleas of Erie County, Pennsylvania v. Louis Rzymek, William O. Hill and Leo P. Weir, Commissioners for the County of Erie, Pennsylvania, and American Federation of State, County and Municipal Employees, A.F.L.-C.I.O. and Robert Gordon Kennedy, District Attorney for Erie County, Pennsylvania, v. Louis Rzymek, William O. Hill, Jr. and Leo P. Weir, Commissioners for the County of Erie, Pennsylvania, and American Federation of State, County and Municipal Employees, A.F.L.-C.I.O.

COUNSEL

John M. McLaughlin, with him Paul F. Curry and Knox, Graham, Pearson, McLaughlin & Sennett, Inc., for plaintiffs.

Warren W. Bentz, with him Robert D. Douglass and Peter G. Schaaf, for defendants.

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

Author: Bowman

[ 15 Pa. Commw. Page 107]

We consolidated for hearing and disposition the petitions of the plaintiffs, the Register of Wills and the District Attorney of Erie County, for special or temporary injunctions,*fn1 restraining the defendants from taking certain personnel actions with respect to employes attached to the plaintiffs' offices, from enforcing certain provisions of a labor agreement between the defendants, the Commissioners of Erie County and the defendant American Federation of State, County and Municipal Employes, AFL-CIO, and from including in a new labor contract certain provisions of said existing contract.

The case is pending before us after transfer from the Supreme Court of Pennsylvania and is currently awaiting our decision, after argument, upon preliminary objections to the complaint. The ultimate issue is whether certain provisions of the present labor contract, which the plaintiffs deem offensive, are illegal and hence unenforceable.

The facts developed at the hearing are briefly, that the County Commissioners of Erie County, prior to August 1973, commenced negotiations of a labor contract

[ 15 Pa. Commw. Page 108]

    with the defendant Union, which latter had been certified by the Pennsylvania Labor Relations Board as the exclusive collective bargaining representative of county employes, including non-professional employes in the offices of the Register of Wills and District Attorney. The plaintiffs had been personally assured by one or more of the commissioners that the former would be consulted in the negotiations for a contract with respect to provisions affecting the employes of their offices. In fact, the plaintiffs were ignored by the commissioners until an agreement was fully developed by the commissioners and the Union. The plaintiffs' objections to provisions of the agreement offensive to them were voted down by the commissioners and the controller*fn2 when the county salary board*fn3 met to consider the proposed agreement.

The provisions of the agreement which the plaintiffs contend are illegal encroachments upon their powers are:

Article VII, providing for seniority based on length of service and allegedly implying limitations on the plaintiffs' power to discharge employes in their offices.

Article XII, B and C, providing for posting and bidding by employes for vacant positions and the filling of such vacancies by senior qualified employes.

Article XIII, A, D and E, providing the order in which, in case of necessity for layoffs, employes should be terminated.

Article XVI, B and D, providing that the county, represented by the commissioners, may grant leaves of absence and for the termination of employes for absences not authorized by the county.

[ 15 Pa. Commw. Page 109]

Article XXVIII, D, E and F, providing for grievance procedures for the settlement of differences between employes and their superiors, including the plaintiffs.

Plaintiff Fischer alleges that these provisions are contrary to and in derogation of the powers given him as Register of Wills and Clerk of the Orphans' Court by the following statutes:

Act of 1955, August 9, P.L. 323, § 1310, 16 Purdon's Statutes 1310.

"The clerk of the orphans' court of each county in which a separate orphans' court is now or hereafter shall be established may appoint an assistant clerk or clerks, but only with the consent and approval of said court."

Act of 1875, March 18, P.L. 25, § 2, 17 Purdon's Statutes 1831.

"[I]t shall be the duty of the prothonotary, district attorney and clerks of the several courts to appoint or detail such clerks or deputies as shall enable the several judges to properly ...


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