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FRANK A. BIVIGHOUSE v. BOROUGH COUNCIL BOROUGH TELFORD (05/20/82)

decided: May 20, 1982.

FRANK A. BIVIGHOUSE, APPELLANT
v.
BOROUGH COUNCIL OF THE BOROUGH OF TELFORD, APPELLEE



Appeal from the Order of the Court of Common Pleas of Montgomery County in the case of Frank A. Bivighouse v. Borough Council of the Borough of Telford, No. 80-11232.

COUNSEL

J. Peirce Anderson, with him, Brian P. Sullivan, for appellant.

Mark E. Weand, Jr., with him Richard Abell, Timoney, Knox, Hasson & Weand, for appellee.

President Judge Crumlish and Judges Williams, Jr. and MacPhail, sitting as a panel of three. Opinion by Judge Williams, Jr. This decision was reached prior to the resignation of Judge Mencer. Judge MacPhail concurs in the result only. Judge Palladino did not participate in the decision in this case.

Author: Williams

[ 66 Pa. Commw. Page 549]

Frank A. Bivighouse has appealed from an order of the Court of Common Pleas of Montgomery County dismissing his mandamus action against the Borough Council of the Borough of Telford. By the action below, Bivighouse sought to compel the Borough Council to engage in collective bargaining with him, pursuant to "Act 111,"*fn1 concerning the terms and conditions of his employment for the year 1981. In dismissing the action, the lower court concluded that the collective bargaining sought was barred by a statutorily prescribed time limitation.

Appellant Bivighouse is employed by the Borough of Telford as a police officer, and had been so employed for five years prior to the commencement of the instant litigation. At the time of filing suit, Bivighouse held the rank of sergeant; and, as of that time, he and the chief of police were the only members of the Borough's police force.

At some point in June of 1980, Sergeant Bivighouse decided that he wished to negotiate with the Borough Council about the terms and conditions of his employment for the following year, 1981. On June 20, 1980, he met with the attorney for the Fraternal Order

[ 66 Pa. Commw. Page 550]

    of Police (FOP) to consider a "list of areas" to be discussed with the Borough in collective bargaining under "Act 111." On June 23, 1980, the FOP attorney telephoned the Borough Manager and requested the scheduling of a "perfunctory meeting," which meeting, the attorney contemplated, would constitute a beginning of the bargaining process on behalf of Bivighouse. The attorney also requested that the meeting take place on or before June 30, 1980. The Borough Manager responded by insisting that the attorney put the request in writing, for the purpose of documentation and so that the request could be served on the several members of the Borough's "official family."

The FOP attorney focused on the date June 30, 1980, because of a statutory time provision affecting his client's right to bargain collectively about the terms of his 1981 employment. Section 3 of "Act 111" provides as follows:*fn2

Collective bargaining shall begin at least six months before the start of the fiscal year of the political subdivision or of the Commonwealth, as the case may be, and any request for arbitration, as hereinafter provided, shall be made at least one hundred ten days before the start of the said fiscal year. (Emphasis added.)

For the Borough of Telford, the fiscal year begins on the first day of each calendar year. Thus, the Borough's fiscal year was to begin on January 1, 1981. By force of Section 3, above, any collective bargaining under "Act 111" concerning the Borough's 1981 fiscal year had to be started at least 6 months prior to the beginning of that fiscal year; meaning that any such bargaining had to be started no later than July 1, 1980.

On June 24, 1980, which was a Tuesday, the Borough Manager received a letter ...


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