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FRATERNAL ORDER POLICE v. EUGENE F. HICKEY (06/05/79)

decided: June 5, 1979.

FRATERNAL ORDER OF POLICE, E. B. JERMYN LODGE NO. 2, BY THOMAS P. TOLAN, JR., PRESIDENT, TRUSTEE AD LITEM, APPELLANT
v.
EUGENE F. HICKEY, MAYOR OF THE CITY OF SCRANTON ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Lackawanna County in case of Fraternal Order of Police, E. B. Jermyn Lodge, No. 2, by Thomas Tolan, Jr., President and Trustee ad Litem v. Eugene F. Hickey, Mayor of the City of Scranton; James McDonnell, Director of Public Safety; Richard Rossi, Jack T. Harte, James A. Doherty, Michael Melnick, Paul Catalano, Councilmen of the City of Scranton; Joseph Corcoran, Controller of the City of Scranton; Eugene Cosgrove, Treasurer of the City of Scranton; and the City of Scranton, Pennsylvania, No. 710 March Term, 1978.

COUNSEL

Anthony P. Moses, for appellant.

Ralph J. Iori, Jr., with him John J. Brazil, for appellee.

Judges Mencer, Rogers and Craig, sitting as a panel of three. Opinion by Judge Mencer. Dissenting Opinion by Judge Craig.

Author: Mencer

[ 43 Pa. Commw. Page 238]

A specific clause in the employment contract between the City of Scranton and members of its police force reads as follows: "That, the Chief of Police, and in the event the City shall employ a Commissioner of Police, or Superintendent of Police or some other similar plan, the person who fills the position, must come from the ranks of Scranton Police Department."

This clause was agreed upon as of January 1, 1973 as part of a 2-year contract between the parties and was continued in effect through 1978 by binding arbitration awards. In January of 1978, Eugene F. Hickey, newly elected Mayor of the City of Scranton, appointed Paul Durkin as Superintendent of Police for the City of Scranton. Mr. Durkin is a veteran of 20 years' service with the Federal Bureau of Investigation, and it is conceded in these proceedings that he is "a fine man and competent police chief." Nevertheless, Mr. Durkin had not, prior to his appointment by Mayor Hickey, been a member of the Scranton Police Department.

The Fraternal Order of Police, E. B. Jermyn Lodge No. 2, by Thomas P. Tolan, Jr., President, Trustee ad Litem (plaintiff) filed an action in mandamus to enforce the clause in question. The named defendants, being the City of Scranton, the Mayor, members of City Council, the City Controller, and City Treasurer, filed an answer to the complaint in mandamus. Thereafter, the plaintiff filed a motion for peremptory judgment and, after argument before the Court of Common Pleas of Lackawanna County, an order was entered June 29, 1978 dismissing plaintiff's complaint in mandamus. This appeal followed and we affirm.

The resolution of labor disputes between political subdivisions of this Commonwealth and their police departments was the objective of the legislature when

[ 43 Pa. Commw. Page 239]

    it enacted the Act of June 24, 1968, P.L. 237, as amended, 43 P.S. § 217.1 et seq. (Act 111). However, the defendants assert that the clause in dispute here is not within the scope of Act 111, which affords to policemen, through their representatives, "the right to bargain collectively with their public employers concerning the terms and conditions of their employment, including compensation, hours, working conditions, retirement, pensions and other benefits. . . ." Section 1, 43 P.S. § 217.1.

We are in accord with the trial court's determination that the legislature did not intend the phrases "terms and conditions of employment" and "other benefits" to allow a given group of employees the right to bargain that their highest supervisory person must be selected from their own preselected employee group. Such a provision as under challenge here is invalid and not a bargainable issue, since it involves a matter outside the course of the policemen's ...


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