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NICHOLAS ZECK ET AL. v. ROBERT L. BALSBAUGH ET AL. (05/11/82)

decided: May 11, 1982.

NICHOLAS ZECK ET AL., APPELLANTS
v.
ROBERT L. BALSBAUGH ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Lebanon County in the case of Robert L. Balsbaugh and Patrick J. Dostick, Jr. and Lebanon Lodge 42, Fraternal Order of Police v. Nicholas Zeck, Paul K. Fetter and Daniel L. Leib, Supervisors of Heidelberg Township, Lebanon County, Pennsylvania, No. 664 Year 1981, In Mandamus.

COUNSEL

Robert C. Rowe, for appellants.

David J. Brightbill, Siegrist, Koller, Brightbill & Long, for appellees.

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

Author: Doyle

[ 66 Pa. Commw. Page 449]

This is an appeal by the Board of Supervisors, Heidelberg Township (Board) from an order of the Court of Common Pleas of Lebanon County dismissing the Board's Motion to Open Peremptory Judgment. For the reasons which follow, we reverse and remand.

Following negotiations between the Board and the Heidelberg Township Police Department, a collective bargaining agreement was adopted by the Township and the officers of the township police department in January, 1981. Appellees, Robert L. Balsbaugh and Patrick J. Dostick, Jr. (Officers) are among the members of that department who executed the agreement. On February 10, 1981, the Officers were advised by the Board that, "due to fiscal and monetary policies," the township police department would be reduced to two members. These Officers are the least senior members of the department. Thus, pursuant to the provisions of The Police Tenure Act, Act of June 15, 1951, P.L. 586, as amended, 53 P.S. ยงยง 811-815, this action by the Township resulted in Officers' discharge. Subsequently, the Officers brought an action in mandamus

[ 66 Pa. Commw. Page 450]

    against Board seeking reinstatement. On March 12, 1981 the court of common pleas entered a peremptory judgment, without notice, against the Board, ordering the reinstatement of the Officers. The Board filed a Motion to Open Peremptory Judgment which was denied by the court of common pleas on March 26, 1981. This appeal followed.

The Board contends that the lower court erred in dismissing the motion to open because (1) significant issues of fact remained unresolved, and (2) circumstances did not present sufficient exigency to support a judgment without prior notice.*fn1

Pa. R.C.P. No. 1098 reads:

At any time after the filing of the complaint, the court may enter judgment if the right of the plaintiff thereto is clear, but the judgment may be opened upon cause shown. Judgment shall not be entered without prior notice to all parties unless the exigency of the case is such as to require action before notice, in which event notice shall be given as soon as possible.

The party who seeks the extraordinary relief provided by Pa. R.C.P. No. 1098 has a "heavy burden to prove to the court that their right to a summary judgment [is] clear and free from doubt." Williams v. Rowe, 3 Pa. Commonwealth Ct. 537, 545, 283 A.2d 881, 885 (1971). In the case at bar, this burden has not been satisfied. The Officers alleged that the collective bargaining agreement constituted an employment contract which created an enforceable expectation of continued employment for the term of the agreement (two years). If this ...


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