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ROBERT W. SWEENY v. MICHAEL E. JOHNS (12/09/77)

decided: December 9, 1977.

ROBERT W. SWEENY
v.
MICHAEL E. JOHNS, APPELLANT



Appeal from the Order of the Court of Common Pleas of Washington County in case of Robert W. Sweeny v. Michael E. Johns, No. 477 May Term, 1976.

COUNSEL

George K. Hanna, for appellant.

Robert L. Ceisler, with him Patrono, Ceisler, Edwards and Edwards, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Rogers and Blatt. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson

[ 33 Pa. Commw. Page 210]

The appellee in this case is a member of the police force in Washington, Pa., (City), a third class city. The appellee was a lieutenant on the force, having been appointed to this rank under the terms of an arbitration award. He was then reduced in rank to sergeant

[ 33 Pa. Commw. Page 211]

    and subsequently to patrolman, by the appellant mayor of Washington. It is admitted that this reduction in rank was not based on any claim of misconduct or other just cause, but was purely a discretionary act by the appellant. The appellee then brought an action in mandamus to compel the appellant to restore him to the rank of lieutenant. The lower court sustained the appellee's action, ordering the appellee's restoration to the rank of lieutenant. This appeal was then taken. We affirm.

Under the provisions of Section 2002 of The Third Class City Code, Act of June 23, 1931, P.L. 932, as amended, 53 P.S. § 37002, the mayor has the sole power to designate the chief of police and the other officers of the police department. The mayor also has the power, subject to certain statutory limitations in the case of the chief of police, to demote the chief and the other officers without cause, and without a hearing or other civil service protection. Zeloyle v. Bettor, 371 Pa. 546, 91 A.2d 901 (1952).

The appellee argues that the arbitration award between the City and the police force limits the mayor's power to demote. The appellee also argues that such a limitation on the power to demote does not bring the arbitration award into conflict with any positive statutory requirement. We agree with both arguments.

The provision of the arbitration award at issue here contains the following basic elements. First, a policeman required to perform duties of a higher rank would receive the compensation of his lower rank for one calendar month, and at the end of the calendar month would then receive the pay of the higher rank. Second, upon the expiration of six calendar months from the date the officer was originally assigned to the temporary duties, he would have to either be promoted to the higher rank or returned to his prior duty. Third, the arbitration award makes provision for the

[ 33 Pa. Commw. Page 212]

    accumulation of periods of temporary service over a two year period. Finally, the award allows, upon agreement between the City and the Fraternal Order of Police, for an officer to serve more than six months ...


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