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PENNSYLVANIA STATE LODGE FRATERNAL ORDER POLICE ET AL. v. CITY WILKES-BARRE ET AL. (07/28/78)

decided: July 28, 1978.

PENNSYLVANIA STATE LODGE FRATERNAL ORDER OF POLICE ET AL., APPELLANTS
v.
CITY OF WILKES-BARRE ET AL., APPELLEES. CITY OF WILKES-BARRE ET AL., APPELLANTS V. PENNSYLVANIA STATE LODGE FRATERNAL ORDER OF POLICE ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Luzerne County in case of Pennsylvania State Lodge Fraternal Order of Police, by Thomas Garvey, Trustee ad litem, and Wyoming Valley Fraternal Order of Police Lodge No. 36, by John Timko, Trustee ad litem, and Police Benevolent Association, by Edward Soltis, Trustee ad litem, and Harold Cawley and Michael Kosek and Laralee Riemensnyder and Michael Buckman and Norbert Swithers and James F. Lendacky and John Smith and Frederick Southern and Donald Crane and William Maguire v. City of Wilkes-Barre and Mayor Walter Lisman, in his official capacity as the Mayor of Wilkes-Barre, and Joseph Williams, in his capacity as Chairman of the City Council of Wilkes-Barre and Robert Brader, Lee Namey, Kevin Blaum, Thomas McLaughlin, Frank Trinisewski, Con Salwoski, in their capacities as members of the City Council of Wilkes-Barre, No. 7173 of 1976.

COUNSEL

Richard Kirschner, with him Neal Goldstein, and Markowitz & Kirschner, for Pennsylvania State Lodge Fraternal Order of Police, et al.

Mark A. Ciavarella, Jr., City Solicitor, for City of Wilkes-Barre, et al.

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

Author: Mencer

[ 37 Pa. Commw. Page 62]

We have for our consideration cross appeals from an order of the Court of Common Pleas of Luzerne County which sustained the City of Wilkes-Barre's preliminary objection in the nature of a demurrer to an amended complaint in mandamus of the Pennsylvania State Lodge Fraternal Order of Police and dismissed the complaint.*fn1

Since the order entered by the court below was not adverse to the City of Wilkes-Barre (City), there is no basis for the appeal of the City, which must be

[ 37 Pa. Commw. Page 63]

    quashed. One may not appeal from a decision which is not adverse to him. Pierro v. Pierro, 434 Pa. 131, 252 A.2d 652 (1969); Borough of Malvern v. Agnew, 11 Pa. Commonwealth Ct. 285, 314 A.2d 52 (1973).

The Pennsylvania State Lodge Fraternal Order of Police et al. (appellants) filed a complaint in mandamus seeking entry of a peremptory judgment ordering the City to reinstate nine policemen who were furloughed December 31, 1975 and to grant back pay, pension credits, and other emoluments to these nine policemen and a tenth policeman who was furloughed at the same time but later reinstated. The request for the entry of a peremptory judgment was denied, and appellants filed an amended complaint.

The gravamen of appellants' amended complaint is that the City has refused to comply with the terms of an Act 111 arbitration award dated January 1, 1976 and that the City subverted its obligations under said Act, Act of June 24, 1968, P.L. 237, as amended, 43 P.S. ยง 217.1 et seq., by effecting a reduction of the complement of police officers in order to meet the fiscal impact of the award.*fn2

We must determine whether the amended complaint in mandamus stated a cause of action. Mandamus will lie only when there is no other legal remedy available, a corresponding right and duty between the parties, and the act requested is purely ministerial and not discretionary. Porter v. Bloomsburg State College, 450 Pa. 375, 301 A.2d 621 (1973).

We are in accord with and adopt the reasoning of Judge Bigelow, writing for the Court of Common Pleas of ...


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