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KENNETH PORTER v. BOARD SUPERVISORS NORTH FRANKLIN TOWNSHIP (05/16/84)

decided: May 16, 1984.

KENNETH PORTER, APPELLANT
v.
THE BOARD OF SUPERVISORS OF NORTH FRANKLIN TOWNSHIP, APPELLEE



Appeal from the Order of the Court of Common Pleas of Washington County in case of Kenneth Porter v. The Board of Supervisors of North Franklin Township, No. 172 July Term, 1980.

COUNSEL

John A. Bacharach, Girman & Bacharach, for appellant.

Mark E. Mascara, with him, George Retos, Jr., Retos, Held & Associates, for appellee.

Judges Craig, Barry and Palladino, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 82 Pa. Commw. Page 441]

This is an appeal by Kenneth Porter (appellant) from an order of the Court of Common Pleas of Washington County which dismissed his complaint in mandamus against the Board of Supervisors of North Franklin Township (Board).

Appellant was first employed by North Franklin Township as a part-time police officer in 1967. He was subsequently promoted to a full-time lieutenant in July 1976 and continued as such until December 27, 1978. Throughout this entire period, he was also employed by the McGraw Edison Company on a full time basis.

On December 19, 1978, appellant was advised by the newly appointed chief of police that his position as lieutenant was eliminated and he was requested to assume general patrol duties on a rotation basis. In short, he was told that the police department would no longer allow him the flexible work schedule he

[ 82 Pa. Commw. Page 442]

    needed in order to accommodate his other full-time employment. Confronted with a choice between his two jobs, appellant, according to the factual findings of the trial court, chose to continue his private employment with the McGraw Edison Company and, therefore, voluntarily relinquished his position as a police officer. On May 30, 1979, five months after he last reported for work, appellant's name was officially removed from the duty roster.

Appellant then filed a complaint in mandamus against the Board on July 15, 1980, seeking reinstatement as a police officer and reimbursement for lost wages in excess of $60,000.00. The court dismissed his complaint by order dated January 20, 1983. This appeal followed from that order.

The decision to grant relief in a mandamus action is within the sole discretion of the trial court. Branchick v. Department of Labor and Industry, 496 Pa. 280, 436 A.2d 1182 (1981). Our scope of review is limited to a determination of whether, in reaching that decision, the trial court abused its discretion or committed error in applying the law. Cottone v. Kulis, 74 Pa. Commonwealth Ct. 522, 460 A.2d 880 (1983).

Mandamus will lie where the issue is the propriety of dismissing a police officer from a position which he properly held and to which he seeks reinstatement. Wolkoff v. Owens, 12 Pa. Commonwealth Ct. 74, 314 A.2d 545 (1974). The burden of proof is on the petitioner to establish that he is entitled to the relief requested. More specifically, he must show that: "(1) there is a want of any other adequate and specific legal remedy, (2) there is a clear legal right to which he is entitled and (3) there exists a corresponding ...


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