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decided: April 23, 1981.


Appeal from the Order of the Court of Common Pleas of Montgomery County in the case of George Conyer, Theodore Hunsicker, Norman Tulone & Daniel Abate v. Borough of Norristown and Borough Council of the Borough of Norristown, No. 79-12287.


Norman Ashton Klinger, for appellants.

Paul C. Vangrossi, for appellees.

Judges Mencer, Rogers and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. Judge Wilkinson, Jr. did not participate in the decision in this case.

Author: Macphail

[ 58 Pa. Commw. Page 630]

George Conyer, Theodore Hunsicker, Norman Tulone and Daniel Abate (Appellants) appeal from an order of the Court of Common Pleas of Montgomery County*fn1 which affirmed the decision of the Borough of Norristown Civil Service Commission (Commission) that the Borough Council of Norristown (Borough Council) acted properly and in accordance with applicable law when it furloughed the Appellants for reasons of economy. We affirm.

Appellants were employed as police officers by the Borough of Norristown (Borough) when, on June 20, 1978, Borough Council passed a resolution providing that Appellants would be furloughed, effective June

[ 58 Pa. Commw. Page 63123]

, 1978, for reasons of economy. Appellants received notice that they had been furloughed and appealed the action to the Commission. Pertinent to the instant appeal is the fact that at the initial hearing before the Commission, Appellants' attorney stipulated that each of the Appellants was eligible for retirement at the time they were furloughed.*fn2 After two hearings the Commission affirmed the action of the Borough Council. Appellants ultimately appealed to this Court.

The issues presently before us are, 1) whether the stipulation entered into before the Commission is valid and 2) whether the Borough Council may furlough police officers absent a finding that the officers are "unneeded."

The Appellants were furloughed pursuant to Section 1190 of the Borough Code (Code), Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. § 46190, which provides in pertinent part:

If for reasons of economy or other reasons it shall be deemed necessary by any borough to reduce the number of paid employes of the police or fire force, then such borough shall apply the following procedure: (i) if there are any employes eligible for retirement under the terms of any retirement or pension law, then such reduction in numbers shall be made by retirement of such employes, starting with the

[ 58 Pa. Commw. Page 632]

    oldest employe and following in order of age respectively. . . .

Borough Council concluded that pursuant to this provision Appellants should be furloughed first.

Appellants argue that the stipulation entered into by their counsel before the Commission relative to their eligibility for retirement is invalid and that the matter should be remanded to the Commission, pursuant to the doctrine of primary jurisdiction, for determination of their eligibility. Appellants argue that the stipulation affects the jurisdiction and prerogative of the Commission, was inadvertently entered into, involves an area of important public policy and is such a key issue that the Appellants should not be precluded from seeking a judicial determination as to their eligibility. Each of these arguments must fail.

The general rule as to the binding effect of a stipulation is that the parties may stipulate the law of the case and be bound by their act in all matters which affect them so long as the stipulation does not affect the jurisdiction and prerogatives of the court. George A. Fuller Co., Inc. v. City of Pittsburgh, 15 Pa. Commonwealth Ct. 403, 327 A.2d 191 (1974) (parties may not stipulate the validity of a regulation) and Foley Brothers, Inc. v. Commonwealth, 400 Pa. 584, 163 A.2d 80 (1960) (parties may not stipulate more than the legal number of arbitrators). A stipulation is clearly not binding if the facts presented conflict therewith. Burns v. Employers' Liability Assurance Corp., Ltd., 205 Pa. Superior Ct. 389, 209 A.2d 27 (1965). We cannot agree with Appellants that the stipulation here involved affects the prerogatives of the court nor do any facts in the record conflict with the stipulation.

Stipulations may not ordinarily be withdrawn by one party without the consent of the other. This is

[ 58 Pa. Commw. Page 633]

    especially true where, as here, the non-consenting party would be prejudiced by such a withdrawal. 83 C.J.S. Stipulations § 30 (1953). We conclude that the stipulation is valid and binding on the parties to this appeal. Appellants' petition to remand is, accordingly, denied.*fn3

Proceeding to the merits of the case, Appellants argue that Borough Council acted improperly when it furloughed them without first finding that their positions were "unneeded." Appellants base their argument on the following quote, which interprets a provision similar to Section 1190,*fn4 where we said that, "'Reasons of economy' would include, in our judgment, a saving of money by removal of unneeded employees, regardless of the financial condition of the City." Genes v. City of Duquesne, 27 Pa. Commonwealth Ct. 620, 623, 367 A.2d 327, 329 (1976). Clearly, this language describes only one of many "reasons of economy" which might justify the removal of employees. A municipality which is suffering financial difficulties certainly may reduce the number of employees in its police force pursuant to Section 1190 without finding that the officers are "unneeded." We conclude that there is no standard requirement that employees be "unneeded" before they may be terminated for reasons of economy. "The only limitation imposed on the power of a municipality to act in the reduction of its police civil service work force for economy or other reasons is that it must act in good faith." Kraftician v. Borough of Carnegie, 35 Pa. Commonwealth Ct. 470, 473, 386 A.2d 1064, 1066

[ 58 Pa. Commw. Page 634]

(1978). Appellants have not argued that the Borough acted in bad faith and there is ample evidence in the record to demonstrate that the Borough Council furloughed Appellants due to budgetary constraints, thus demonstrating the Borough's good faith.

We, accordingly, affirm the order of the lower court.


And Now, this 23rd day of April, 1981, the order of the Court of Common Pleas of Montgomery County, dated May 20, 1980, No. 79-12287 is hereby affirmed.

Judge Wilkinson, Jr. did not participate in the decision in this case.



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