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BOROUGH YEADON AND NICHOLAS D'ALESSANDRO v. THOMAS MONTGOMERY ET AL. (02/11/83)

decided: February 11, 1983.

BOROUGH OF YEADON AND NICHOLAS D'ALESSANDRO, APPELLANTS
v.
THOMAS MONTGOMERY ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Delaware County in case of Thomas Montgomery, Robert Frazier and Paul Wood, Individually and as Representatives of all the Full-Time Civil Service Police Officers of the Borough of Yeadon Police Department v. Borough of Yeadon and Nicholas D'Alessandro, No. 81-04136.

COUNSEL

Joseph F. Battle, for appellants.

Alexander A. DiSanti, Richard, Brian, DiSanti & Hamilton, for appellees.

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

Author: Rogers

[ 72 Pa. Commw. Page 33]

This is the Borough of Yeadon's appeal from an order of the Court of Common Pleas of Delaware County, granting a prayer of a complaint in equity filed by three of the Borough's full-time police officers by directing the Borough to comply in the future with an arbitration award entered on December 28, 1977, and awarding the plaintiffs amounts determined to represent losses sustained by them as a result of the Borough's past failure to comply with the award.*fn1

The pertinent provision of the 1977 award of the board of arbitrators is contained in its paragraph 7 and is as follows:

OVERTIME

The Police request for a change in the overtime benefit is denied and the overtime benefits shall continue "as is." However, it is directed that the Borough give full time police officers first choice with respect to overtime work provided it is possible within the scheduling.

The parties agree that the Borough's alleged non-compliance with the mandate contained in the second sentence of this provision was the subject of an earlier equity action in the Delaware County Court of Common Pleas, docketed to No. 80-6890, which suit was discontinued on the basis of a settlement agreement which provides in part

2. Yeadon agrees to honor the Arbitration Award which gives full-time police officers first crack at overtime when scheduling permits.

4. Yeadon will use part-timers to fill in for emergency situations and when regulars are on vacation.

[ 72 Pa. Commw. Page 34]

The complaint in the instant matter contains the averment that the Borough has

[d]espite repeated requests . . . failed and refused to honor the terms of the said Settlement Agreement, in that the Borough has continued to use part-time officers in non-emergency situations and have [sic] not given the Plaintiff ...


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