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LARRY FIORELLI AND JOHN CURREN v. CITY CHESTER (05/17/78)

decided: May 17, 1978.

LARRY FIORELLI AND JOHN CURREN, APPELLANTS
v.
CITY OF CHESTER



Appeal from the Order of the Court of Common Pleas of Delaware County in case of Larry Fiorelli and John Curren v. City of Chester, No. 76-11190.

COUNSEL

Alexander A. DiSanti, with him Richard, Brian, DiSanti & Hamilton, for appellants.

Edward J. Zetusky, Jr., Assistant City Solicitor, with him Charles G. Nistico, Assistant City Solicitor, for appellee.

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

Author: Wilkinson

[ 35 Pa. Commw. Page 281]

Two police officers of the City of Chester (City) appeal an order of the Court of Common Pleas of Delaware County dismissing their suit seeking to compel compliance with an arbitration award rendered pursuant to the Act of June 24, 1968, P.L. 237, as amended, 43 P.S. § 217.1 et seq. (commonly referred to as Act 111). We reverse and remand.

In 1975, contract negotiations between the City and its policemen reached an impasse which resulted in a board of arbitrators being appointed pursuant to Act 111. The arbitrators returned an award for the calendar year 1976 which contained a provision providing that the City was to compensate police officers for counsel fees up to the sum of $10,000 incurred in criminal actions arising from the officer's duty where the officer expends the sum of $250 for the representation from his own or independent sources and where the officer is found not guilty of the charges.*fn1

[ 35 Pa. Commw. Page 282]

In June 1976 appellants were charged with aggravated assault and conspiracy stemming from an arrest incident on April 28, 1976. The charges were dismissed following preliminary hearings. Incident to these charges appellants retained counsel and incurred legal expenses of $350 each. Requests for compensation from the City for $100 by each officer were denied and the appellants brought an action in assumpsit in the court below. The trial court, with two judges dissenting, sustained appellee's motion for judgment on the pleadings and dismissed the complaint. In its opinion, the court concluded the City lacked authority to make such payments under the provisions of The Third Class City Code, Act of June 23, 1931, P.L. 932, as amended, 53 P.S. § 35101 et seq.

The first question raised by this appeal is whether The Third Class City Code prohibits partial reimbursement of legal expenses incurred by police officers charged and found not guilty of criminal conduct arising from their official duties rendering that provision of the arbitration award illegal and unenforceable. See Washington Arbitration Case, 436 Pa. 168, 259 A.2d 437 (1969).

The court below, in concluding that the disputed arbitration provision was illegal, relied on Sections 2403(53), 53 P.S. § 37403(53), and 2403(53.1), added by the Act of July 10, 1975, P.L. 46, 53 P.S. § 37403(53.1). These provisions contain the express grant of authority to third class cities to purchase insurance for city officers and employees. In particular, Section

[ 35 Pa. Commw. Page 2832403]

(53.1) provides that a city may "purchase insurance on officers and employes for liability arising from errors and omissions in the performance of their duties in the course of their employment, except that liability of elected and appointed officials or officers for surcharge in accordance with law shall not be affected hereby." The trial court interpreted this section authorizing the purchase of insurance for civil but not criminal actions as ...


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