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APPEAL JUDITH B. KAHLE (01/08/88)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 8, 1988.

APPEAL OF JUDITH B. KAHLE, A MEMBER OF THE POLICE FORCE OF THE TOWNSHIP OF FOSTER, COUNTY OF MCKEAN, STATE OF PENNSYLVANIA. JUDITH B. KAHLE, APPELLANT

Appeal from the order of the Court of Common Pleas of McKean County, in case of Appeal of Judith B. Kahle, a member of the Police Force of the Township of Foster, County of McKean, State of Pennsylvania, No. 852 C.D. of 1985.

COUNSEL

Walter Stenhach, Stenhach & Stenhach Law Offices, for appellant.

Richard W. Mutzabaugh, Mutzabaugh, Mutzabaugh, Saunders & Mattie, for appellee.

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

Author: Doyle

[ 112 Pa. Commw. Page 403]

This is an appeal by Judith B. Kahle (Appellant) from an order of the Court of Common Pleas of McKean County, which affirmed a decision of the Foster Township Supervisors to terminate Appellant's employment as a police officer with the Township of Foster.

The trial court took its own evidence and found that Appellant had been hired on January 9, 1984 as a part-time secretary-dispatcher for the police department. On August 21, 1984 she was told that she would be assigned the additional duties of serving as a backup police officer and, hence, would become a full-time employee. That same day she was administered an oath of office by Supervisor Frank Milks. Appellant, however, became concerned that Milks did not possess the requisite authority to administer the oath and, consequently, on September 5, 1984, as a result of her inquiry, Appellant was again sworn in, along with another officer (James Seeker), by a District Justice. On October 19, 1984 Appellant was informed that her position was being eliminated and that she would be terminated effective November 1, 1984. Seeker was retained. It is undisputed that the termination was taken as a cost effective measure pursuant to Section 3 of the Act of June

[ 112 Pa. Commw. Page 40415]

, 1951, P.L. 586, as amended, 53 P.S. ยง 813 (Police Tenure Act).

Appellant contends that Section 3 of the Police Tenure Act requires that termination of positions in circumstances such as this be accomplished according to seniority, and that she should have been retained over Seeker. We agree that seniority is the controlling factor in deciding terminations under Section 3 of the Police Tenure Act, and the question presented, of course, is when does Appellant's seniority begin? Appellant's theory on appeal is that the Township should be estopped from asserting that she was not a police officer as of August 21, 1984 and, alternatively, that she was a de facto police officer as of August 21, 1984. We shall deal with these arguments seriatim.*fn1

The doctrine of estoppel is basically applicable where there has been an inducement by the party sought to be estopped to the party who asserts the estoppel to believe that certain facts exist and the party asserting the estoppel acts in reliance upon that belief. Sabino v. Junio, 441 Pa. 222, 272 A.2d 508 (1971). Here, the trial court found that Appellant did not believe that Supervisor Milks had the requisite authority to administer the oath. Thus, she arranged the second ceremony with the District Justice. Accordingly, Appellant's own actions belie her contention that she relied upon the Supervisor's action. Hence, estoppel will not lie.

Appellant's other contention is that she was a de facto police officer as of August 21, 1984, and, therefore, must be viewed as being senior to Seeker. Caselaw clearly establishes that one can hold a de facto position

[ 112 Pa. Commw. Page 405]

    hence, that Appellant did not become a de jure officer until September 5, 1984. Therefore, Appellant's seniority was equal to that of Seeker. That being the case, the Township was free to choose which of the two employees it would terminate. See Gorski v. Dickson City Borough School District, 178 Pa. Superior Ct. 158, 113 A.2d 334 (1955); Lazaran v. School District of Luzerne Township, 3 Fayette L.J. 199 (1940). Here, we have no allegation that that choice was based upon any impermissible factor such as race or sex. Accordingly, we conclude that the Township properly terminated Appellant and that the common pleas court correctly affirmed that determination.

Affirmed.

Order

Now, January 8, 1988, the order of the Court of Common Pleas of McKean County in the above-captioned matter is hereby affirmed.

Disposition

Affirmed.


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