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CARL JESKE v. UPPER YODER TOWNSHIP (07/03/79)

decided: July 3, 1979.

CARL JESKE, JR., APPELLANT
v.
UPPER YODER TOWNSHIP, APPELLEE



Appeal from the Order of the Court of Common Pleas of Cambria County in case of Carl Jeske, Jr. v. Upper Yoder Township, No. 1977-3833.

COUNSEL

Patrick A. Gleason, with him Gleason, DiFrancesco, Shahade & Markovitz, for appellant.

W. Louis Coppersmith, with him Gustave S. Margolis and Margolis & Coppersmith, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt and MacPhail. Judges DiSalle and Craig did not participate. Opinion by Judge Rogers.

Author: Rogers

[ 44 Pa. Commw. Page 15]

Carl Jeske, Jr. has appealed from an order of the Court of Common Pleas of Cambria County affirming his dismissal from the Upper Yoder Township Police Department by reason of his failure to comply with a township ordinance requiring police officers to reside in the township.

Mr. Jeske was employed as a police officer of Upper Yoder Township for eight and one-half years. He never lived in the township. In 1976, the township and its policemen entered into binding arbitration under the Act of June 24, 1968, P.L. 237, as amended, 43 P.S. § 217.1 (Act 111) and the award which emanated therefrom provided that the township could, if it chose, impose a residency requirement upon its police officers. Pursuant to the award, on February 3, 1977, an ordinance was enacted providing:

Section 1. That all present police officers of the Township of Upper Yoder and any and all persons who shall hereinafter be hired and employed by the Township as police officers shall be bona fide residents of the Township who establish and maintain legal, full time and exclusive residence within the Township.

Section 2. Any police officer presently employed by the Township and who was employed by the Township on January 1, 1977, and who does not reside and live within the geographic limits of the Township, shall be given six months from January 1, 1977, to meet the residential requirement of this Ordinance.

On July 1, 1977, during a recess in a special public meeting, the Board of Supervisors met in executive session to consider charges by the Chief of Police that Mr. Jeske had failed to comply with the residency requirement. During the executive session the Board

[ 44 Pa. Commw. Page 16]

    fixed a date for a hearing of the charges and suspended Mr. Jeske from his employment pending a final disposition of the charges. On July 11, 1977, the Board conducted a hearing which at Mr. Jeske's specific request was in public. After this hearing, the Board dismissed Mr. Jeske for his failure to become a resident of the township. Mr. Jeske appealed his dismissal to the Court of Common Pleas which upheld the dismissal. This appeal followed. We affirm the order of the court below.

Mr. Jeske first raises the issue of whether the township complied with provisions of the Act of July 19, 1974, P.L. 486, as amended, 65 P.S. § 261 et seq., known as the Sunshine Law. His contention is that the Board's vote to suspend him in executive session violated Section 2 of the Sunshine Law, 65 P.S. § 262, which provides that "[n]o formal action shall be valid unless such formal action is taken during a public meeting." We disagree. Section 3 of the Law, 65 P.S. § 263, authorizes that an executive session may be held during a properly constituted public meeting for the purpose of "[c]onsidering dismissal or disciplining of, or hearing complaints or charges brought against a public elected officer, employee, or other public agent unless such person requests a public hearing." The Board's decision to suspend Mr. Jeske pending the ...


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