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ELIJAH GAUDEN v. BOROUGH ROSCOE (01/17/84)

decided: January 17, 1984.

ELIJAH GAUDEN, APPELLANT
v.
BOROUGH OF ROSCOE, APPELLEE



Appeal from the Order of the Court of Common Pleas of Washington County in the case of Elijah Gauden v. Borough of Roscoe, No. 257 September Term, 1981 A.D.

COUNSEL

Paul A. Tershel, with him D. Keith Melenyzer, for appellant.

John E. Costello, for appellee.

Judges Williams, Jr., MacPhail and Blatt, sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 79 Pa. Commw. Page 590]

Elijah Gauden appeals from an order of the Court of Common Pleas of Washington County dismissing his exceptions and affirming the trial court's opinion and order which dismissed his complaint in mandamus against the Borough of Roscoe.

Seeking reinstatement and back pay, Gauden filed a complaint in mandamus alleging that he was dismissed as chief of police in violation of the provisions of the Act of June 15, 1951, P.L. 586, as amended, 53 P.S. §§ 811-816 (known as the Police Tenure Act) in that he was never furnished with a written statement of the charges against him and was not granted a hearing prior to dismissal. Section 4 of the Act, 53 P.S. § 814. The Borough denied that Gauden had been dismissed and averred that he had chosen not to continue

[ 79 Pa. Commw. Page 591]

    as the Borough's chief of police under a new condition of employment.*fn1

The common pleas court, after a hearing on the mandamus complaint, decided, inter alia, that Gauden was not discharged but voluntarily chose not to work under the new condition of employment; that the Police Tenure Act was therefore not applicable; and, that the mandamus action was not appropriate. This appeal followed.*fn2

After a thorough review of the record we conclude that the trial court erred in finding that Gauden had resigned from his chief of police position. In 1981, Gauden's personal vehicle was twelve years old, could not pass inspection and was not economically serviceable. Additionally, Gauden apprised the Borough that he could not afford to purchase a vehicle suitable for police work. Although Gauden never abandoned his employment (when the Borough police car was sold he performed foot patrol duties), the borough council declared the chief of police position vacant upon Gauden's failure to accept the new condition of employment.

Unless there is some special meaning to be attributed to it, the word "resign" ...


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