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BARRY ALMY ET AL. v. BOROUGH WILKINSBURG (07/15/80)

decided: July 15, 1980.

BARRY ALMY ET AL., APPELLANTS
v.
THE BOROUGH OF WILKINSBURG, A MUNICIPAL CORPORATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Barry Almy, John Anderson, Gregory Ferrell, Charles Simler, and Edmund Schott v. The Borough of Wilkinsburg, a Municipal Corporation, No. G.D. 79-2344.

COUNSEL

John F. Karns, Karns & Corbett, for appellants.

James M. McElfish, for appellee.

Judges Mencer, Blatt and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 53 Pa. Commw. Page 48]

Barry Almy, John Anderson, Gregory Ferrell, Charles Simler, and Edmund Schott (collectively, Appellants) were all employed as police officers by the Borough of Wilkinsburg (Borough), a municipal corporation. On December 23, 1978, at a special meeting of the Borough's council, the council, by resolution (resolution 6720), reduced the size of the Borough's police force resulting in the furloughing of Appellants from the force effective January 1, 1979.*fn1 Appellants filed suit in mandamus with the Court of Common Pleas of Allegheny County seeking reinstatement to the Borough's police force with back pay. After a hearing, the Court dismissed Appellants' complaint and they have appealed that order to this Court.

Appellants raise four issues for our consideration:

I. Whether resolution 6720 was legislative and not ministerial in character and, therefore, invalid because it was not advertised or recorded as required by Sections 1006(4) and 1008(a) of The Borough Code (Code), Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. ยงยง 46006(4) and 46008(a).

[ 53 Pa. Commw. Page 49]

II. Whether resolution 6720 is invalid because the Borough's Mayor was precluded from casting a tie-breaking vote on a motion to rescind the resolution.

III. Whether the resolution was invalid because it was not passed for reasons of economy as required by Section 1190 of the Code, 53 P.S. ยง 46190, but rather was motivated by bad faith on the part of the council.

IV. Whether Appellants were improperly denied a hearing concerning their furloughs before the Borough's Civil Service Commission.

For the reasons which follow, we affirm the trial court's order.

I. The Resolution

In determining whether the resolution resulting in Appellants' furloughs was invalid because it was not publicized in accordance with Section 1006(4) of the Code and was not recorded in the Borough's ordinance book in accordance with Section 1008(a) of the Code, we must first determine whether the resolution was of a "legislative character." Only if it was, would the requirements of Sections 1006(4) and 1008(a) be applicable.

"There is no special virtue in the word 'legislative' merely because it stems from the same root as 'legislature'. It derives its qualifying meaning from the character of the thing done." Addison Case, 385 Pa. 48, 57-58, 122 A.2d 272, 276 (1956). "It is the substance of the act of a governing body that is all important, not the form thereof." Commonwealth ex rel. Fox v. Chace, 403 Pa. 117, 122, 168 A.2d 569, 572 (1961). Ordinarily, "When a governmental body is exercising a legislative function, it manifests a general purpose and its final result." Pittsburgh v. Insurance Commissioner, 4 Pa. Commonwealth Ct. 262, 266, 286 A.2d

[ 53 Pa. Commw. Page 50475]

, 477 (1971), rev'd on other grounds, 448 Pa. 466, 294 A.2d 892 (1972).

If an ordinance or resolution of a legislative nature is defined in terms of "general" purposes, a resolution of a non-legislative or ministerial nature (which is what the Borough argues resolution 6720 to be) should be defined in terms of "specific" purposes. Our Supreme Court has distinguished between legislative and non-legislative enactments (whether their formal titles be ordinance, resolution, or some other) by regarding the former as being permanent and the latter as temporary or as pertaining to "the transaction of current business [or] the ordinary administration of municipal affairs." Jones v. Schuylkill Light, Heat and Power Co., 202 Pa. 164, 167, 51 A. ...


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