Appeals in the case of Albert J. McCarthy et al. v. James W. DeBald et al., No. 139 January Term, 1981.
Carole J. Wildoner, with her, Anthony L. V. Picciotti, Anthony L. V. Picciotti, P.C., for appellants/appellees, James W. DeBald et al.
Justin J. McCarthy, of counsel: Wusinich and McCarthy, for appellees/appellants, Albert J. McCarthy et al.
Judges Rogers, Craig and Doyle, sitting as a panel of three. Opinion by Judge Craig.
[ 87 Pa. Commw. Page 410]
The Borough of Kennett Square*fn1 appeals from a decision of the Court of Common Pleas of Chester County, sitting en banc, which affirmed, in part, an order which Judge Gawthrop of that court had issued in a mandamus action which several police officers*fn2 had brought against the borough to enforce arbitration awards and collective bargaining commitments. The en banc court affirmed those parts of Judge Gawthrop's order requiring the borough to pay the officers for overtime worked during 1978 through 1981 and to purchase life insurance for each officer, but struck those paragraphs of the order directing the borough to pay to the police pension fund the amounts it had failed to expend for life and disability insurance. The officers cross-appeal from the striking of those parts of Judge Gawthrop's order.*fn3
[ 87 Pa. Commw. Page 411]
The several issues for our determination are (1) whether Judge Gawthrop properly addressed and determined the availability of mandamus, (2) whether mandamus was appropriate for two former officers, (3) whether the trial court erred in an evidentiary ruling, (4) whether the trial court correctly awarded overtime pay, and, on the cross-appeal, (5) whether the en banc court abused its discretion by striking portions of Judge Gawthrop's order.
During the years 1974 through 1981, a series of collective bargaining agreements and arbitration awards*fn4 governed the employment relationship between the borough and its police officers, in accordance with Act 111, Act of June 24, 1968, P.L. 237, as amended, 43 P.S. §§ 217.1-217.10. The terms of those awards and agreements required the borough to compensate the officers at one and one-half times the hourly base pay for overtime, defined as more than eight hours per day or forty hours per week. The terms also required the borough to purchase term life insurance in the amount of $25,000 for each officer and to spend a maximum of $2,000 per year, in both 1975 and 1976, for disability insurance. The 1983 contract, in effect at the time of Judge Gawthrop's decision, similarly required the borough to purchase life insurance for each officer.
[ 87 Pa. Commw. Page 412]
The officers sought mandamus to compel the borough's compliance with each of the specified terms. After trial, Judge Gawthrop issued an order deciding in favor of the officers on each of those points. Ruling on the borough's exceptions, the en banc court concluded that no precedent directly supported the judge's order granting to the police pension fund those sums which the borough had failed to expend for insurance premiums; the court en banc therefore struck those sections, but left the balance of Judge Gawthrop's order as the court's final order.
1. Availability of Mandamus
The borough initially contends that Judge Gawthrop erred by failing to determine, after receiving evidence, whether mandamus was the appropriate procedural vehicle for the case. Before answering the complaint, the borough had filed a preliminary objection in the nature of a demurrer; Judge Stively overruled that objection, ...