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FRANK CONLEY v. CLARE JOYCE (12/10/76)

decided: December 10, 1976.

FRANK CONLEY, JOSEPH FRIEL AND THEODORE POKAY
v.
CLARE JOYCE, CONTROLLER, CITY OF CHESTER, THOMAS MCCUE, DEPUTY DIRECTOR OF ACCOUNTS AND FINANCE, CITY OF CHESTER, AND HOWARD MACNEILLY, TREASURER, CITY OF CHESTER, AND JOHN H. NACRELLI, CLEMENT J. MCGOVERN, JR., ALEXANDER V. OSOWSKI, LEO S. HOLMES, AND JAMES SHARP, COMPRISING THE CHESTER CITY COUNCIL. (2 CASES)



Appeal from the Order of the Court of Common Pleas of Delaware County in case of Frank Conley, Joseph Friel and Theodore Pokay v. Clare Joyce, Controller, City of Chester; Thomas McCue, Deputy Director of Accounts and Finance, City of Chester; and Howard MacNeilly, Treasurer, City of Chester, No. 5194 of 1973.

COUNSEL

Alexander A. DiSanti, with him Richard, Brian, DiSanti & Hamilton, for Frank Conley, et al.

Louis J. Sinatra, with him Melvin G. Levy, and, of counsel, Levy and Levy, for Clare Joyce, et al.

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

Author: Mencer

[ 27 Pa. Commw. Page 469]

This action arises on cross appeals from an order of the Court of Common Pleas of Delaware County in a mandamus action brought by police officers of the City of Chester (City) to compel compliance with an arbitration award rendered pursuant to Section 4 of the Act of June 24, 1968, P.L. 237, 43 P.S. ยง 217.4 (Act

[ 27 Pa. Commw. Page 470111]

). By a stipulation of facts, it was agreed that the case of plaintiff Joseph Friel would be submitted as representative of the Chester Police Department's claims for overtime from January 1, 1973 to December 31, 1975. The legal determination in this case will control in the cases of all police officers of the City similarly situated. At issue in this case is paragraph 3 of the arbitrators' award which provides:

Each member of the [police] department shall receive time and a half for all time in excess of 320 hours worked during an eight week period. The Board suggests in order to make this workable, that the department continue the four platoon system but do so on a six day on and two day off basis with regularly scheduled days off for each officer during said eight week period resulting in a normal schedule of 320 work hours in each eight week period. Payment shall be made for overtime in the paycheck for the ninth week to the extent that no compensatory time has been given for time worked in excess of 320 hours for said eight week period. Compensating time may however be given either during the eight week period or during the ninth week. Overtime for duty as a witness in a criminal court shall be paid for only as straight time and civil time shall not constitute overtime.

Before we address the issues raised in these appeals, we are compelled to point out that the court below interpreted this paragraph to mean that overtime would be paid for hours in excess of the regularly scheduled 40 hours worked each week, not to exceed a total of 44 hours of work per week. However, by the terms of the award it is apparent that overtime is to be calculated on the basis of an 8-week period.*fn1 With

[ 27 Pa. Commw. Page 471]

    this in mind, the lower court's interpretation must be somewhat modified to comport with the plain language of the award. As we noted, the court's order upheld the award insofar as it granted overtime pay at time and a half for hours worked in excess of 40 hours in one week up to a limit of 4 hours of overtime (44 hours) per week. It would have been more accurate, in our opinion, to have stated that overtime is payable at time and a half for hours worked in excess of 320 in an 8-week period, provided that in any one week only 44 hours may be counted toward the total.*fn2

This proviso and the holding of the court below are based on Section 2004 of The Third Class City Code, Act of June 23, 1931, P.L. 932, as amended, 53 P.S. ...


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