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FRANK CONLEY v. CLARE JOYCE (10/27/78)

decided: October 27, 1978.

FRANK CONLEY, JOSEPH FRIEL AND THEODORE POKOY,
v.
CLARE JOYCE, CONTROLLER, CITY OF CHESTER, THOMAS MCCUE, DEPUTY DIRECTOR OF ACCOUNTS AND FINANCE, CITY OF CHESTER, AND HOWARD MACNEILLY, TREASURER, CITY OF CHESTER, APPELLANTS IN NO. 347. FRANK CONLEY, JOSEPH FRIEL AND THEODORE POKOY, APPELLANTS IN NO. 348, V. CLARE JOYCE, CONTROLLER, CITY OF CHESTER, THOMAS MCCUE, DEPUTY DIRECTOR OF ACCOUNTS AND FINANCES, CITY OF CHESTER, AND HOWARD MACNEILLY, TREASURER, CITY OF CHESTER, AND JOHN H. NACRELLI, CLEMENT J. MCGOVERN, JR., ALEXANDER V. OSOWSKI, LEO S. HOLMES, AND JAMES SHARP, COMPRISING THE CHESTER CITY COUNCIL



Nos. 347 & 348 January Term, 1977, Appeal from the Order of the Commonwealth Court of Pennsylvania, at Nos. 117 and 129 C D. 1976, Modifying the Order entered by the Court of Common Pleas, Delaware County, dated December 17, 1975 at No. 5194 of 1973.

COUNSEL

Levy & Levy, Melvin G. Levy, Louis J. Sinatra, Chester, for appellants at No. 347 and appellees at No. 348.

Richard, Brian, DiSanti & Hamilton, Alexander A. DiSanti, Upper Darby, for appellants at No. 348 and appellees at No. 347.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Larsen, JJ. Manderino, J., did not participate in the consideration or decision of this case.

Author: Roberts

[ 482 Pa. Page 265]

OPINION OF THE COURT

City of Chester police instituted a complaint in mandamus in the Court of Common Pleas of Delaware County. They seek the City of Chester's compliance with the "overtime" provision of an arbitration award entered by a Board of Arbitration pursuant to Act 111.*fn1 Under the overtime provision, "[e]ach member of the [Chester police] department shall receive time and a half for all time in excess of 320 hours worked during an eight week period." The award further provides: "Overtime for duty as a witness in a criminal court shall be paid for only as straight time and civil court time shall not constitute overtime."*fn2

[ 482 Pa. Page 266]

The parties have stipulated that the claim of officer Joseph Friel would be dispositive of the claims of all officers. According to the stipulation, Friel on several occasions worked in excess of 320 hours in eight weeks and appeared in criminal court "during his off duty time."*fn3

The court of common pleas concluded that Section 2004 of the Third Class City Code,*fn4 53 P.S. ยง 37004 (as amended Supp.1978), places an upper limit upon the compensable working hours of Chester police officers. Under Section 2004, "[n]o city shall employ or require any police officer to remain on duty for more than eight hours in any twenty-four consecutive hours, nor more than forty-four hours in any one week, unless in emergency cases for the suppression of riots or tumults or the preservation of the public peace . . . ."*fn5 The court of common pleas therefore held the award unenforceable to the extent that it permits additional pay for non-emergency hours worked in excess of the daily and weekly limits of Section 2004. The trial court applied Section 2004 to the entire overtime award, including the "overtime for duty as a witness in a criminal court" provision. The court upheld the award in all other respects. Thus, it directed the City to pay overtime in accordance with the award for the hours not in excess of the express limits of Section 2004 of the Code.

[ 482 Pa. Page 267]

Both parties appealed to the Commonwealth Court. The Commonwealth Court affirmed the court of common pleas' determination that the award could not be enforced beyond the limits of Section 2004. But the Commonwealth Court limited the scope of Section 2004 to "on-duty" services. It therefore upheld the award of overtime pay, in its entirety, for "off-duty" hours spent as a witness in criminal court as a result of law enforcement activities. Like the court of common pleas, the Commonwealth Court upheld the award in all other respects. We granted both parties' petitions for allowance of appeal.*fn6

Chester police contend that, regardless of the limits imposed by Section 2004 of the Third Class City Code, all overtime resulting from scheduled duty, including that in excess of 320 hours in an eight week period, should be compensated at "time and a half" rates.*fn7 The City urges that overtime within the limits of Section 2004 should be compensated at regular hourly rates ("straight time").*fn8 The City also asserts that "off-duty" hours in criminal court are, like scheduled duty hours, subject to the limits of Section 2004. We hold that "off-duty" hours spent in criminal court are subject to ...


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