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OFFICER JOHN D. IORIO v. BOROUGH CARNEGIE (01/28/85)

decided: January 28, 1985.

OFFICER JOHN D. IORIO, APPELLANT
v.
BOROUGH OF CARNEGIE, MAYOR LAWRENCE HARKOVICH; COUNCIL PRESIDENT JOHN DEFONSO ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Officer John D. Iorio v. Borough of Carnegie; Mayor Lawrence Harkovich; Council President John DeFonso; Councilman Albert Falcioni; Councilman Robert Horak; Councilman James McCaffrey; and Councilman Dan Blankowski, No. GD 83-05283.

COUNSEL

Shelley W. Elovitz, with her, Ronald N. Watzman, Watzman & Elovitz, for appellant.

John F. Cambest, Conway, Meyer & Cambest, for appellees.

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

Author: Doyle

[ 87 Pa. Commw. Page 236]

This is an appeal by John D. Iorio (Appellant) from an order of the Court of Common Pleas of Allegheny County sustaining the Borough of Carnegie (Borough's) preliminary objection that Appellant had failed to exhaust his administrative remedy and dismissing Appellant's complaint.

Appellant began his employment as a patrolman with the Borough on December 13, 1977. On May 11, 1982, Appellant was granted a six month leave of absence pursuant to his request, said leave to begin on June 6, 1982. On July 12, 1982 Appellant sent a letter to the mayor of the Borough expressing his intent to resign, requesting the return of his unused sick leave and retirement monies, and indicating that he would be withdrawing his previously granted leave of absence.

On November 12, 1982 Appellant rescinded his July 12, 1982 letter and indicated his intent to return to active duty. Appellant also returned pension contributions he had received on July 27, 1982. The Borough, however, failed to reinstate Appellant to his position, although it filed no formal charges against him, nor had it formally accepted his resignation. Appellant then filed a complaint in mandamus with the common pleas court praying that the court order the Borough to reinstate him.

[ 87 Pa. Commw. Page 237]

The Borough filed a preliminary objection contending that Appellant had failed to exhaust his administrative remedy before the Civil Service Commission. The trial court sustained the objection and this appeal followed.

Section 1191 of the Borough Code*fn1 (Code) provides that police officers are to be accorded hearings on demand in cases of suspension, removal or reduction in rank. Appellant argues that the personnel action here in question cannot be a removal because Section 1190 of the Code*fn2 provides that removal actions may be taken for only six specific reasons none of which has been alleged by the Borough here. The Borough contends that any removal is appealable to the Commission and that the refusal to reinstate Appellant is an "implied removal."

We agree with the Borough. The fact that the personnel action is not taken for one of the six statutorily recognized reasons does not preclude it from being a removal, although it may preclude it from being a valid removal. In the present fact pattern the Borough has refused to recognize Appellant's revocation of his resignation and reinstate him. Appellant wants to return to his position as is evidenced by his revocation letter; he has not been permitted to do so. Thus, the effect of the Borough's action (or inaction) is to remove Appellant. "The clear intent of the Legislature in using 'removal' in Section 1191 was to cover the situation where the employee's service was terminated, i.e., ...


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