Donald L. Reihart, Dist. Atty., pro se.
Harold N. Fitzkee, Jr., York, for appellee, White Rose Lodge.
John W. Thompson, Jr., York, for appellee, City of York.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Manderino, J., filed a dissenting opinion.
As a result of an employment contract between the City of York and its police officers, consummated pursuant to binding arbitration, it was agreed that the city would pay its police officers the sum of $15.00 for each day or portion thereof spent in court appearances or hearings during their off-duty hours. This sum was to be received in addition to the officers' regular fixed salary and the statutory witness
fee available to any citizen who is called upon to appear as a witness in this Commonwealth.*fn1 This term of the bargaining agreement was subsequently implemented by the city with the passage of the following ordinance:
"Each policeman will receive $15.00 for each day or portion thereof spent in appearance at Court or hearings during off-duty time."*fn2
In February, 1974, the District Attorney for York County, the instant appellant, notified city officials that he believed this provision to be illegal and that he intended to take appropriate measures, including the possibility of criminal prosecutions and requests for injunctive relief, in an effort to prevent these expenditures of public monies.
As a consequence of these expressions of intention of the District Attorney, the City of York filed a petition for a declaratory judgment in the Court of Common Pleas to ascertain the legality of the challenged ordinance. The Fraternal Order of Police, White Rose Lodge No. 15, labor representative of the policemen affected by the agreement,
was permitted to intervene.*fn3 The lower court concluded that the Third Class City Code, Act of June 23, 1931, P.L. 932, § 2008, as amended, 53 P.S. § 37008 (hereinafter referred to as Section 37008) and the general public policy of this Commonwealth as reflected in various municipal statutes disallowed the enforcement of the contractual promise. The Commonwealth Court, Blatt, J. dissenting, reversed the lower court on the ground that the provision was not "per se violative" of Section 37008, nor were the contemplated per diem payments "fees" within the prohibition of the general municipal law since they had a "rational relationship" to compensation for police duty on off-time. This Court thereafter granted allocatur. Because we believe that the city ordinance authorizing such payments is in direct contravention of the express and unambiguous language of the legislature forbidding all municipalities in this Commonwealth from including "fees" in the compensation afforded their police officers, we reverse the order of the Commonwealth Court and reinstate the order of the trial court.
The legislature has provided that the compensation which municipalities and townships provide to their police officers "shall hereafter be such an amount as shall be fixed by law, but under no circumstances shall such compensation be determined by or include any fines, rebate of fines, or fees." 1953, Aug. 19, P.L. 1100, N. 296, § 1, 53 P.S. § 636 (Supp.1977-78) (hereinafter referred to as Section 636). Since York is a Third Class City we must also consider Section 37008 of the ...