Appeal from the Order of the Court of Common Pleas of Luzerne County, in the case of Peter J. Kohl v. Rice Township Board of Supervisors, No. 2846-C of 1986.
Jonathan A. Spohrer, with him, Richard M. Goldberg, Hourigan, Kluger, Spohrer, Quinn & Myers, P.C., for appellant.
Joseph B. Farrell, for appellee.
Judges Doyle and Barry, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Barry. Concurring Opinion by Judge Doyle.
[ 118 Pa. Commw. Page 511]
This is an appeal by Peter J. Kohl (Kohl) from an order of the Court of Common Pleas of Luzerne County which sustained the preliminary objections of the Rice Township Board of Supervisors (Township) and dismissed for lack of jurisdiction Kohl's complaint for reinstatement and backpay under the Police Tenure Act, Section 3 of the Act of June 15, 1951, P.L. 586, as amended, 53 P.S. § 813 (Act).
Kohl was a corporal in the Township police department from September 1979 to January 1, 1986. On the later date he received a letter from the Township notifying him that he was being furloughed.*fn1 On July 2, 1986, Kohl filed a complaint in mandamus seeking reinstatement and back pay. He alleged that the furlough was not made in accordance with Section 3 of the Act which provides that police furloughs must be made in a reverse hiring order, commencing with the last person hired. Kohl alleged in his complaint that he was not the last person hired and therefore should not have been furloughed.
The Township filed preliminary objections in the nature of a motion to strike. It argued that the trial court did not have jurisdiction since Kohl did not file an appeal from the furlough notice. The Township based this argument on the contention that the January 1, 1986 letter was an adjudication under the Local Agency Law, Section 1710.31 of the Administrative Agency Law, 2 Pa. C.S. §§ 551-555, 751-754. The trial court determined that Kohl's mandamus action was improper inferring that the January 1, 1986 letter was a proper adjudication. After determining that the mandamus action was improper, the trial court treated the complaint as an appeal
[ 118 Pa. Commw. Page 512]
under Section 708(c) of the Judicial Code, 42 Pa. C.S. § 708(c) and dismissed Kohl's complaint as untimely under Section 5571 of the Judicial Code, 42 Pa. C.S. § 5571. Kohl appeals this decision.
Kohl contends that the trial court's decision violated his due process rights and that the trial court's decision is an error of law. The central issue is whether the January 1, 1986 furlough letter is an appealable decision.
It is not contested that the January 1, 1986 letter was sent and received. However, in Callahan v. Pennsylvania State Police, 494 Pa. 461, 431 A.2d 946 (1981), the Supreme Court stated that a letter of notice sent to a state policeman was not as an adjudication by the state police so that the time for filing an appeal commenced. In Callahan, a state police officer received full salary as long as he remained disabled under the Heart and Lung Act.*fn2 When it was determined that he was not longer temporarily disabled, a letter of notice was sent which indicated that he was no longer entitled to benefits.*fn ...