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ALFRED A. RADOSTI v. TOWNSHIP LOWER MAKEFIELD (05/25/77)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 25, 1977.

ALFRED A. RADOSTI
v.
TOWNSHIP OF LOWER MAKEFIELD, WESTLEY W. HACKMAN, JR., RICHARD D. HOYT, LLOYD H. KLATZKIN, HENRY S. MILLER, FREDERICK P. VAN ORDEN AND CHARLES E. RONALDO, APPELLANTS

Appeal from the Order of the Court of Common Pleas of Bucks County in case of Alfred A. Radosti v. Township of Lower Makefield, Westley W. Hackman, Jr., Richard D. Hoyt, Lloyd H. Klatzkin, Henry S. Miller, Frederick P. Van Orden and Charles E. Ronaldo, No. 75-7947.

COUNSEL

William J. Carlin, with him Begley, Carlin, Mandio, Kelton & Popkin, for appellants.

John J. Collins, for appellee.

Judges Kramer, Wilkinson, Jr. and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 30 Pa. Commw. Page 298]

This is an appeal by the Township of Lower Makefield*fn1 from an order of the Court of Common Pleas of Bucks County which ordered the Township to reinstate Alfred A. Radosti to the rank of detective and reimburse him for lost wages.

Radosti had been a member of the Township's police force and had been assigned to serve in a detective unit. When the Township notified Radosti that he would be returning to regular patrolman duties, he filed an action in mandamus alleging that he had been improperly demoted. The Township defended against this charge on the basis that Radosti had never been promoted, that he had always been a patrolman and that his assignment to a detective unit had been merely a lateral one within the patrolman's rank. Radosti has argued that the status and pay of patrolman and detective are not similar, that he had been promoted to the rank of detective and that he was therefore protected from arbitrary demotion to patrolman by the Police Tenure Act*fn2 (Act). The lower court

[ 30 Pa. Commw. Page 299]

    found that a rank of detective existed to which Radosti had been promoted, that the protection of the Act applied to his subsequent demotion and, because the Act's safeguards had not been provided, ordered reinstatement and reimbursement of wages.

It is well established that mandamus is an extraordinary writ which can issue to compel the performance of a ministerial act or a mandatory duty where there is a clear legal right in the plaintiff, a corresponding duty in the defendant and a want of any other appropriate and adequate remedy. Blystone v. Borough of Forest Hills, 22 Pa. Commonwealth Ct. 395, 349 A.2d 494 (1975). We are concerned here with the issue of whether or not Radosti has shown that he has a clear legal right to the alleged rank of detective.

In Templeton Appeal, 399 Pa. 10, 159 A.2d 725 (1960), our Supreme Court stated that if the appellant there enjoyed a legal right to the office of policeman or to the office of chief of police, he was entitled to the protection of the Police Tenure Act.

However, to establish his legal right to the position involved he had the burden of proving the legality of his appointment thereto. Upon

[ 30 Pa. Commw. Page 300]

    him rested the responsibility of establishing his title de jure to the position he claimed the legal right to hold. Permanency of tenure, given by the Act of 1951, applies only to those whose appointments are made in compliance with law: Manning v. Millbourne Borough Civil Service Commission, 387 Pa. 176, 127 A.2d 599 (1956).

Templeton Appeal, 399 Pa. at 13, 159 A.2d at 727-728.

Because the borough records in Templeton failed to show an official creation of a police department, the court held that the appellant did not have a legal right to the position there involved.

In this case it is clear that the Township has legally provided for only four ranks within its police department: patrolman, corporal, sergeant, and chief of police. Absent proof that the rank of detective was legally created, Radosti has no legal right to either the alleged rank of detective or to the protections of the Act, Templeton Appeal, supra, and relief in mandamus is clearly inappropriate.

Radosti has argued that the Township has informally created the rank of detective, and that such a rank exists as evidenced by the job specifications of a detective as compared with those of a policeman.*fn3 We note, however, that the slightly higher salaries*fn4 paid to detectives appear only in the collective bargaining agreements entered into by the Township and

[ 30 Pa. Commw. Page 301]

    these differences are readily attributable to the fact that patrolmen performing as detectives are on call twenty-four hours each day. It is also relevant here to note that the Township's description of the job of patrolman includes criminal investigation on an assigned tour of duty (investigating misdemeanors and felonies, and apprehending and arresting suspects).

We, therefore, reverse the order of the lower court.

Order

And Now, this 25th day of May, 1977, the order of the Court of Common Pleas of Bucks County dated May 17, 1976, which ordered the reinstatement of, and the reimbursement of lost wages to, Alfred A. Radosti, is hereby reversed.

Disposition

Reversed.


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