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BOROUGH MONACA ET AL. v. LALLI KALERVO (08/09/84)

decided: August 9, 1984.

BOROUGH OF MONACA ET AL., APPELLANTS
v.
LALLI KALERVO, APPELLEE



Appeal from the Order of the Court of Common Pleas of Beaver County in the case of Lalli Kalervo v. Borough of Monaca and Civil Service Commission of the Borough of Monaca, No. 434 of 1981.

COUNSEL

Gregory Gleason, Hough & Gleason, P.C., with him, Eugene Martucci, for appellants.

John J. Hudacsek, Jr., with him, Debra A. Genevie, Hudacsek and Lewis, for appellee.

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

Author: Doyle

[ 84 Pa. Commw. Page 400]

Before this Court is an appeal by the Borough of Monaca and the Civil Service Commission of the Borough of Monaca from a decision and order of the Court of Common Pleas of Beaver County granting a writ of mandamus to Lalli Kalervo and directing that he be reinstated to his former position with the Borough Police Department. The matter has come to us following the common pleas court's en banc dismissal of exceptions to the trial judge's decree nisi.

This Court's scope of review of matters such as this requires that we affirm the trial court unless there has been an abuse of discretion or an error of law. West Penn Power Co. v. Board of Property Assessment, Appeals and Review of Allegheny County, 80 Pa. Commonwealth Ct. 378, 471 A.2d 1285 (1984). After a careful review of the record in this matter we find neither an abuse of discretion nor any error of law by the trial court. Accordingly we affirm on the basis of the well-reasoned opinion of the Honorable Robert E. Kunselman in Kalervo v. Borough of Monaca, Pa. D. & C. 3d (1981). We do so with the additional note that, with regard to the issue of laches, the action of the Borough, in adopting its budget without providing for the position of the appellee, which the Borough categorizes as operating to its prejudice should this suit be permitted, occurred on December

[ 84 Pa. Commw. Page 40128]

, 1980, approximately six months after Appellee's discharge. Laches as a defense bars relief when "the complaining party is guilty of want of due diligence in failing to institute his action to another's prejudice." Wilson v. King of Prussia Enterprises, Inc., 422 Pa. 128, 133, 221 A.2d 123, 126 (1966). It "cannot be based on a change of position taking place before the complainant could have and reasonably should have brought suit." Leedom v. Thomas, 473 Pa. 193, 202, 373 A.2d 1329, 1333 (1977). Hence, the relevant inquiry for the purpose of determining whether there was undue delay on Appellee's part in bringing suit is whether he should have filed his action within six months, i.e., before the Borough adopted its budget in December. This is especially pertinent when viewed in light of the fact that, of the three months which passed between Appellee's failure to obtain a statement of charges from the Borough in November of 1980, and the filing of his claim, in February of 1981, two of those months, namely, January and February 1981, came after the Borough's adoption of its budget. See Leedom, 473 Pa. at 202, n. 8, 373 A.2d at 1333, n. 8. Thus, there was a time frame of only one month during which Appellee had reason to believe a lawsuit would be necessary to obtain relief, before the Borough would have this Court terminate that option.

Order

Now, August 9, 1984, the decision and order of the Court of Common Pleas of Beaver County in the above captioned matter, No. 434 of 1981, is hereby affirmed.

Disposit ...


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