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WALTER LEKOVITCH v. BOROUGH RANKIN MATTHEW FURJANIC (01/15/75)

decided: January 15, 1975.

WALTER LEKOVITCH, NEKODIE MUDD, ANTHONY PREZEOSI, FELIX PALMER AND JOSEPH VRANICH, APPELLANTS,
v.
BOROUGH OF RANKIN; MATTHEW FURJANIC, MAYOR; GEORGE TISHKO, GEORGE FEDAK, RALPH ROCCO, SAMUEL T. ROY, HEINTZELMAN PRICE, JR., THOMAS VILAJ, CHARLES ZEZZA, MEMBERS OF THE BOROUGH COUNCIL, APPELLEES



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Walter Lekovitch, Nekodie Mudd, Anthony Prezeosi, Felix Palmer and Joseph Vranich v. Borough of Rankin, Matthew Furjanic, Mayor; George Tishko, George Fedak, Ralph Rocco, Samuel T. Roy, Heintzelman Price, Jr., Thomas Vilaj, Charles Zezza, Members of the Borough Council, No. 1970 October Term, 1972.

COUNSEL

Ronald P. Koerner, with him Gatz, Cohen, Segal & Koerner, for appellants.

Leo Kostman, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Mencer, Rogers and Blatt. Judges Kramer and Wilkinson, Jr. did not participate. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 17 Pa. Commw. Page 50]

Before us is an appeal from an order of the Court of Common Pleas of Allegheny County which sustained the preliminary objections of the Borough of Rankin and the members of the Borough Council of Rankin (Appellee). Appellants are Borough police officers.

On December 6, 1971, following arbitration, an award was made relating to the terms and conditions of employment in the Rankin Police Department for the year 1972. The award conformed to the Police and Fire Arbitration Act, Act of June 24, 1968, P.L. 237, 43 P.S. §§ 217.1 et seq. (Act 111). When Appellee refused to implement the award, Appellants commenced an action in mandamus to compel compliance with the terms of the award. Of particular concern was the increase in pay amounting to approximately seven hundred dollars per man per annum. The complaint prayed that the award be paid in full, retroactively to May 3, 1972 to comply with Federal Pay Board (Pay Board) regulations in effect at that time.*fn1 The preliminary objections filed by Appellee averred, inter alia, that the award exceeded federal guidelines which limited pay increases to 5.5%.*fn2 Appellee

[ 17 Pa. Commw. Page 51]

    further averred that insufficient funds had been appropriated to meet the award to the extent that it exceeded 5.5% for the year 1972. The court overruled the preliminary objections.*fn3

Then followed a series of events crucial to this appeal. Charles Brown, a representative of the Fraternal Order of Police, had appealed to the Pay Board during the pendency of the litigation before the court below, wherein he sought review of the decision which imposed the 5.5% guideline retroactively to May 3, 1972. Resulting from this appeal was a determination that the entire award for the year 1972 would not be subject to the 5.5% guideline and therefore the entire pay increase could be paid to the borough employees.*fn4

When the preliminary objections were overruled the only relief to be considered by the court was an adjudication which would limit the 5.5% guideline to the retroactive date of May 3, 1972. Armed with the favorable ruling by the Pay Board, Appellants sought, and were granted leave to amend the original complaint in which they prayed for the full pay raise provided in the arbitration

[ 17 Pa. Commw. Page 52]

    agreement which would be effective January 1, 1972. Appellees again filed preliminary objections not unlike the averments in the initial preliminary objections but added the contention that neither notice of the appeal to the Pay Board, nor notice of the Pay Board's ruling had been provided Appellee by Appellant. This they urged constituted a denial of fundamental due process of law. On the ...


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