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THOMAS R. ROTH v. BOROUGH VERONA ET AL. (05/17/83)

decided: May 17, 1983.

THOMAS R. ROTH, APPELLANT
v.
BOROUGH OF VERONA ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Thomas R. Roth v. Borough of Verona, et al., No. SA 368 of 1980.

COUNSEL

Bruce D. Campbell, Meyer, Darragh, Buckler, Bebenek & Eck, for appellant.

Nicholas R. Stone, for appellees.

Judges Rogers, Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 74 Pa. Commw. Page 353]

Thomas R. Roth (Appellant) has appealed from an order of the Court of Common Pleas of Allegheny County which dismissed both his action in mandamus and his appeal under the Local Agency Law*fn1 from the action of the Borough Council (Council) of the Borough of Verona (Borough) terminating his employment as a police officer.

A stipulation of facts filed by the parties with the court of common pleas reflects that Appellant was appointed as a probationary police officer on or about September 12, 1978. The probationary period was to last for one year in accordance with applicable law,*fn2 during which time Appellant completed his basic training and then served as a regularly scheduled police officer. On September 11, 1979, Appellant was asked to attend a private Council meeting. At that meeting Appellant was informed that the Mayor and Borough Police Chief were recommending that Council

[ 74 Pa. Commw. Page 354]

    not vote to appoint Appellant to a permanent position with the police force and that Council intended to follow that recommendation.*fn3 After further discussion, Appellant was given the option to accept a six month extension of his probationary period rather than be fired. Appellant agreed to the extension and subsequently signed a written document to that effect which was also signed by the Mayor, Borough Secretary and a witness.*fn4 Although no Council vote was ever taken formally approving the agreement, the Council members voiced no objections to the extension

[ 74 Pa. Commw. Page 355]

    at the meeting. We are in accord with the court of common pleas that the extension agreement represented the will of the Council.*fn5

At the end of the additional six month probationary period, the Mayor and the Chief of Police again recommended, by letter dated March 6, 1980, that Appellant not be granted permanent status. On March 11, 1980, Appellant received a letter of termination signed only by the Council President. Appellant subsequently instituted a mandamus action seeking reinstatement as a permanent police officer. The court of common pleas entered a preliminary order reinstating Appellant pending the outcome of a formal Council vote regarding his retention. Pursuant to that order, the Council voted on April 8, 1980 ...


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