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APPEAL DANIEL AUSTERLITZ ET AL. ROBERT ALEXANDER (12/10/81)

decided: December 10, 1981.

IN RE: APPEAL OF DANIEL AUSTERLITZ ET AL. ROBERT ALEXANDER, ROBERT MACK, JOHN DERIGGI AND FRANK MYERS, APPELLANTS


Appeal from the Order of the Court of Common Pleas of Allegheny County in case of In re: Appeal of Daniel Austerlitz, Robert Lepovsky, Raymond Collins, John Korinek, William McLafferty, Leonard D'Amico, Robert Frank, Joseph Zevola, Ronald Hughes, James Gray, Carmen Traficante, Earl Copeland, Jack McCrory, Ronald Laufer, Stanley Nonnenberg, Henry McCarrell, Leonard Hromyak, Giglio Ciorra and Howard Burton. Petitions of Robert Alexander, Robert Mack, John DeRiggi and Frank Myers, No. SA 937 of 1979.

COUNSEL

Kenneth Benson, with him Bruce E. Dice, Zimmer & Dice, for appellants.

Mary Ann Martin, with her Anthony J. Martin, for appellees, Daniel Austerlitz et al.

Henry G. Beamer, for appellee, Municipality of Penn Hills.

President Judge Crumlish, Jr. and Judges Rogers and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 63 Pa. Commw. Page 141]

Appellants Alexander, Mack, DeRiggi and Myers petitioned the Court of Common Pleas of Allegheny County to intervene in a civil service appeal brought by other police officers, pursuant to which the court had ordered appellants' promotions in the Penn Hills police department rescinded. Appellants sought a rule to vacate the order. After hearing argument, Judge Staisey denied intervention and discharged the rule.

In June, 1979, the Municipality of Penn Hills had instituted testing procedures for promotion of applicants to the rank of police lieutenant. In that same month, the Penn Hills Personnel Board certified to the municipal manager an eligibility list which contained only the four appellants, and appellants were promoted.

After the promotion, nineteen*fn1 fellow officers filed a written request for a hearing before the Personnel Board, at which the board's methods and procedures were challenged, and the challenging officers requested recision of the promotions and a retesting.

[ 63 Pa. Commw. Page 142]

Upon appeal from the Personnel Board's refusal to rescind the promotions, after considering the board's hearing record and oral argument presented on May 19, 1980, Judge Staisey, on June 11, 1980, issued an order upholding the challenge.

Although three of the four appellants were present in court on May 19th, and at least one appellant had actually read the petition filed with the court before May 19th, appellants did not file their intervention petition until June 17, 1980, claiming that they first became aware of the nature of the proceedings on June 11.

Intervention is permitted in a pending action by a person whose interests may be affected by a judgment. Pa. R.C.P. No. 2327(4). However, the right to intervene is not absolute. Under Pa. R.C.P. No. 2329(3), the court may deny intervention if the petition is filed after undue delay, as Judge Staisey did here. This court has interpreted Rule 2329 to permit denial of intervention to a person who had actual or constructive notice of the action and delayed seeking intervention. Seltzer Appeal, 52 Pa. Commonwealth Ct. 121, 415 A.2d 1250 (1980). In view of the evidence of record that ...


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