Appeal from the Order of the Court of Common Pleas of Chester County in case of Bruce L. Penuel v. Uwchlan Township Police Commission and Uwchlan Township Board of Supervisors and William M. Lally, Chairman of Board of Supervisors and Police Commissioner, No. 112 October Term, 1976.
Joseph F. Wusinich, III, for appellant.
William H. Lamb, for appellees.
Judges Wilkinson, Jr., DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. Judge Wilkinson, Jr. dissents.
[ 40 Pa. Commw. Page 513]
On January 5, 1975, Bruce L. Penuel, the Appellant, was hired by the Township of Uwchlan (Township) as a full-time police officer for a probationary period of one year. On November 12, 1975, Penuel was orally dismissed from the police force by the Township Police Chief, William B. Brice, effective November 16, 1975. Penuel's dismissal had not been approved by the Township personnel board. In December Penuel wrote a letter to Brice requesting the reasons for his dismissal in writing. Brice did not comply with this request. On March 18, 1976, Penuel's attorney wrote the Township's Board of Supervisors a letter in which he requested a hearing on Penuel's dismissal. The Township refused to grant Penuel a hearing. Penuel then brought a mandamus action in the Chester County Court of Common Pleas against the Township Police Commission, the Township Board of Supervisors and William M. Lally, the Chairman of the Board of Supervisors and Police Commissioner, seeking reinstatement as a police officer with back pay or a full hearing on his dismissal or both. After a non-jury trial, the Court of Common Pleas of Chester County entered a verdict in favor of the defendants and this appeal followed.
Appellant alleges in his complaint that his dismissal was in violation of the provisions of the Act of June 15, 1951, P.L. 586, as amended, 53 P.S. § 811 et seq. (hereinafter cited as the Police Tenure Act), and
[ 40 Pa. Commw. Page 514]
the Act of June 5, 1941, P.L. 84, as amended, 53 P.S. § 53251 et seq. (hereinafter cited as the Police Civil Service Act). The learned trial judge held that the Appellant's dismissal did not violate the Police Tenure Act, nor did it violate the provisions of Uwchlan Township Resolution No. 72-10 (Resolution). The trial judge did not discuss the provisions of the Police Civil Service Act. Because we find that the provisions of the Resolution are binding upon the Township officials and dispositive of the issue now before us, we need not decide whether the Police Tenure Act or the Police Civil Service Act apply to the facts of the case now before us.
It is true, as the trial judge states, that the Township may wish to offer greater protection to its employees than the statutes of the Commonwealth would normally provide. Township supervisors in second class townships are vested with broad authority by the Legislature with respect to the employment, compensation and termination of township police officers. Section 590 of The Second Class Township Law, Act of May 1, 1933, P.L. 103, as amended, 53 P.S. § 65590. Where the Township supervisors exercise that authority, they are, of course, bound by their own rules.
Initially, we note that the Resolution was not included as a basis for relief in the Appellant's complaint. However, the Resolution was offered into evidence and accepted by the trial court without objection by the defendants. Where there is a variance between the allegata and the probata, unless there is an objection thereto, the variance is deemed to be waived. Baldridge v. Matthews, 378 Pa. 566, 106 A.2d 809 (1954). Accordingly, we believe the Township Resolution was properly before the trial court and is properly before us now.
The relevant provisions of the Resolution ...