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ROBERT L. BALSBAUGH AND PATRICK J. DOSTICK v. NICHOLAS ZECK (11/12/85)

decided: November 12, 1985.

ROBERT L. BALSBAUGH AND PATRICK J. DOSTICK, JR., AND LEBANON LODGE 42, FRATERNAL ORDER OF POLICE
v.
NICHOLAS ZECK, NOW BY SUCCESSOR HAROLD MCQUATE, PAUL K. FETTER AND DANIEL L. LEIB, NOW BY SUCCESSOR GLENN WOLGEMUTH, SUPERVISORS OF HEIDELBERG TOWNSHIP, LEBANON COUNTY, PENNSYLVANIA. PATRICK J. DOSTICK, JR., APPELLANT



Appeal from the Order of the Court of Common Pleas of Lebanon County in the case of Patrick J. Dostick, Jr. and Lebanon Lodge 42, Fraternal Order of Police v. Nicholas Zeck, now by successor Harold McQuate, Paul K. Fetter and Daniel L. Leib, now by successor Glenn Wolgemuth, Supervisors of Heidelberg Township, Lebanon County, Pennsylvania, No. 664, Year 1984.

COUNSEL

David A. Kreider, Siegrist, Koller, Brightbill & Long, for appellants.

John D. Enck, Rowe, Enck & Keys, for appellees.

Judges Rogers and MacPhail, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Rogers. Dissenting Opinion by Senior Judge Barbieri.

Author: Rogers

[ 92 Pa. Commw. Page 628]

Patrick J. Dostick, Jr. has appealed an order of the Court of Common Pleas of Lebanon County dismissing his suit in mandamus against the Supervisors of Heidelberg Township (township).

The issue is that of whether the court of common pleas erred by rejecting Dostick's plea that the township was collaterally estopped from defending against

[ 92 Pa. Commw. Page 629]

    his action for reinstatement as a patrolman on the police force on the ground that his dismissal from the force was for reasons of economy, by reason of a prior unappealed adjudication by the Pennsylvania Labor Relations Board holding that Dostick was dismissed for exercising his right of self-organization and collective bargaining and that the township's claim that Dostick was dismissed for reasons of economy was a pretext.

In 1980 the Heidelberg Township police force consisted of a chief of police and three patrolmen. In February of 1980 the three patrolmen and their collective bargaining representative, the Lebanon Lodge 42 Fraternal Order of Police (FOP), notified the township that they desired to engage in collective bargaining for a contract for the year 1981. After negotiations, a collective bargaining agreement was executed by the parties in early January, 1981 for the years 1981 and 1982.

The township sent Dostick and another patrolman, Robert L. Balsbaugh, letters dated February 10, 1981, dismissing them from the force as of February 19, 1981 "due to fiscal and monetary policies." On February 12, 1981, Dostick and Balsbaugh filed this mandamus action and by peremptory order dated the same day the court ordered the township to reinstate the two officers with back pay.

The township filed a timely motion to open the peremptory judgment which was overruled on April 30, 1981. On May 19, 1982, on appeal by the township, the Commonwealth Court reversed the lower court's order and remanded the case for further proceedings. ...


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