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APPEAL FROM ORDINANCE NO. 384 BOROUGH DALE (01/31/78)

decided: January 31, 1978.

APPEAL FROM ORDINANCE NO. 384 OF THE BOROUGH OF DALE, CAMBRIA COUNTY, PA. KENNETH MYERS, JR., APPELLANT. APPEAL FROM ORDINANCE NO. 384 OF THE BOROUGH OF DALE, CAMBRIA COUNTY, PA. PAUL D. ROGERS, APPELLANT


Appeals from the Order of the Court of Common Pleas of Cambria County in case of Appeal from Ordinance No. 384 of the Borough of Dale, Cambria County, Pennsylvania, Nos. 88-1976 and 89-1976 Misc. Docket.

COUNSEL

Thomas D. Caldwell, Jr., with him Fremont J. McKenrick, and Caldwell, Clouser & Kearns, for appellant, Myers.

Leo Kostman, with him Fremont J. McKenrick, for appellant, Rogers.

Randall C. Rodkey, for appellee.

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

Author: Bowman

[ 33 Pa. Commw. Page 432]

Appellee, Borough of Dale (Borough), employed a police department consisting of two full-time officers. On September 14, 1976, the Borough Council (Council) passed Ordinance No. 384 (Ordinance), Section I of which abolished the police department and Section III of which authorized the Council to contract for police protection with the City of Johnstown pursuant to Section 1202(35) of The Borough Code (Code), Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. § 46202(35). On October 12, 1976, appellant at No. 397 C.D. 1977, the Mayor of the Borough (Mayor), vetoed said Ordinance. On that same date, the Council voted to override the veto.

The Mayor and appellant at No. 398 C.D. 1977, the Chief of Police (Chief), filed in the Court of Common Pleas of Cambria County petitions pursuant to Section 1010 of the Code, 53 P.S. § 46010, seeking to have the Ordinance declared illegal and void.

At argument before the court below, the Mayor argued, inter alia, that as there is no specific provision in the Code permitting the abolition of a police department, the Borough lacked the power to do so, could

[ 33 Pa. Commw. Page 433]

    not now or ever, barring a revision of the Code, abolish said department, and that any action by the Council which would have such an effect would have to comply with the Police Tenure Act, Act of June 15, 1951, P.L. 586, as amended, 53 P.S. § 811 et seq.; and, second, that the Ordinance was void for failure to include within its terms the provisions of the contract to be signed with the City of Johnstown, said requirement supposedly being found in Section 1402 of the Code, 53 P.S. § 46402. A third point, included in the petition but not specifically argued below, was that the Ordinance deprived the Mayor of the means by which to fulfill his duty under Section 1029 of the Code, 53 P.S. § 46029, to preserve order in the Borough and, in conjunction therewith, to direct the manner in which the police department shall perform its duties. Section 1121 of the Code, 53 P.S. § 46121.

Appellant Chief of Police joined in the above arguments and argued further that permitting a borough to abolish its police department would vitiate the purpose and intent of the Police Tenure Act by permitting a borough to accomplish indirectly what it cannot do directly.

The Borough argued, first, that as Section 1121 of the Code permits, without compelling, the establishment of a police force, it could not be said that abolishing the department impinged upon the statutory powers or duties of the Mayor; second, that Section 1006 of the Code, 53 P.S. § 46006, permits the Borough to undo by ordinance that which was done by ordinance; third, that Section 1005 of the Code, 53 P.S. § 46005, permits the cancellation of appropriations previously made to borough offices; fourth, that the Code does not require that the terms of a contract authorized by ...


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