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decided: October 11, 1988.


Original Jurisdiction in the case of Judges of the Court of Common Pleas of the Twenty-Seventh Judicial District; Charles G. Sweet, Thomas D. Gladden, John F. Bell, Samuel L. Rodgers, and Thomas J. Terputac v. County of Washington and Patricia Beharry, County Controller.


Howland W. Abramson, for petitioners.

Christine A. Ward, with her, R. F. Wagner, Dickie, McCamey & Chilcote, P.C., for respondent.

President Judge Crumlish, Jr., and Judges Craig, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by Judge Barry. This decision was reached prior to the resignation of Judge MacPhail. Concurring and Dissenting Opinion by Judge Doyle.

Author: Barry

[ 120 Pa. Commw. Page 284]

Before us in our original jurisdiction*fn1 is a petition for review filed by petitioners (the Judges) of the Twenty-Seventh Judicial District (Washington County). The

[ 120 Pa. Commw. Page 285]

Judges seek by way of a motion for summary judgment an order directing the County of Washington (County) and County Controller Patricia Beharry (the Controller), to authorize payments to certain employees supervised by the Judges.*fn2 There are two separate factual scenarios which are pertinent and which we shall briefly describe.

On August 17, 1983, in the absence of President Judge Sweet, Judge Samuel Rodgers granted certain employees of the Domestic Relations Office (the Office) paid leave to permit them to pay their respects to the head of the Office because of the death of his father. Further, three of these same employees were excused for two and one-half hours the next day, on August 18, 1983, to attend the funeral. On August 23, 1983, Judge Rodgers approved the list of employees and the amount of their leave. The Controller approved payment for one and one-half hours of time but no more because, as she asserts in her brief, she believed that the amount she approved was reasonable under the circumstances. Contrary to the assertions in her brief, however, the Controller, in her answer to the petition, while apparently conceding that the time had been approved by Judge Rodgers for the employees who left work to pay their respects on August 17th, nonetheless denied that time off had been approved for the purpose of attending the funeral on August 18th.*fn3 She also contends that the

[ 120 Pa. Commw. Page 286]

    applicable collective bargaining agreement prohibited payment for the funeral leave.*fn4 The question we must decide is whether the Controller had the authority to deny the claims.

The other issue which we must decide pertains to Lisa B. Morris, who was a law clerk for Judge Rodgers on June 6, 1983. She was hired as a salaried employee. Ms. Morris took time off on July 21, 22, and 25 to study for the Pennsylvania bar examination and July 26 and 27 to take it. The Controller admits in her brief that Ms.

[ 120 Pa. Commw. Page 287]

Morris did so with Judge Rodger's permission. She was, however, compensated only for July 27. The Controller refused to compensate Ms. Morris for the other four days on the basis that County policy does not provide for payment for hours not worked.*fn5 We must, thus, decide whether the Controller properly denied payment to Ms. Morris.

Procedurally, this case comes to us in the posture of the Judges' motion for summary judgment. Consequently, we must determine whether there exists a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Allen v. Colautti, 53 Pa. Commonwealth Ct. 392, 417 A.2d 1303 (1980); Pa. R.C.P. No. 1035.

The Controller contends that issues of material fact exist. With respect to the funeral leave issue the Controller does not explain in her brief what factual disputes exist. Reference to her answer to the petition, however, reveals that her position is that, although employees were given time off to pay their respects on August 17, none of them were excused to attend the funeral on August 18. Additionally, she contends that Judge Rodgers, in permitting the funeral leave, acted beyond his legal authority because, pursuant to a collective bargaining agreement between County employees and the County, bereavement pay is only authorized where the deceased is an immediate family member of the employee. Despite her position that Judge Rodgers could not authorize the leave, she approved one and one-half hours of paid leave for each one because she believed

[ 120 Pa. Commw. Page 288]

    such amount of compensation to be reasonable under the circumstances.

It is well settled that a collective bargaining agreement cannot interfere with the inherent power of the judiciary to hire, supervise or fire its employees. Eshelman v. Commissioners of the County of Berks, 62 Pa. Commonwealth Ct. 310, 436 A.2d 710 (1981), affirmed per curiam sub nom., Eshelman v. American Federation of State, County and Municipal Employees, District Council 88, 502 Pa. 430, 466 A.2d 1029 (1983). The concept of what is entailed in "supervision" has been defined and limited by our state Supreme Court in the recent opinion of Pennsylvania Labor Relations Board v. American Federation of State, County and Municipal Employees, 515 Pa. 23, 526 A.2d 769 (1987), (PLRB), wherein the Court determined that county commissioners had authority to bargain collectively on behalf of the judiciary on the topic of, inter alia, funeral leave. The Court explained that, because funeral leave concerns entitlement to pay for days not worked, it is a "purely financial" concern and, hence, within the ambit of collective bargaining. But the Court recognized that the absence of employees from their jobs could adversely impact on the administration of justice and hence held that bargaining of such rights on behalf of the judiciary could be carried out only if the commissioners first consulted with the judges.

We, nonetheless, believe that PLRB need not be considered in the context of the present case where the Controller alleged in her answer to the petition for review of the Judges that her nonpayment was based on a collective bargaining agreement. Pa. R.C.P. No. 1019(h) provides:

A pleading shall state specifically whether any claim or defense set forth therein is based upon a writing. If so, the pleader shall attach a

[ 120 Pa. Commw. Page 289]

    copy of the writing, or the material part thereof, but if the writing or copy is not accessible to him, it is sufficient so to state, together with the reason, and to set forth the substance of the writing.

As the Controller neither attached a copy of the agreement, stated why it was not accessible to her nor set forth the substance of the funeral leave provisions, we need not consider the collective bargaining agreement. See Triage, Inc. v. Department of Transportation, 113 Pa. Commonwealth Ct. 348, 537 A.2d 903 (1988) (a writing introduced in a manner not in accordance to a rule must be stricken).

Since the collective bargaining agreement is not a part of this case, the answer of the County becomes important. The County in paragraph 8 of its answer states, "[W]hile the Domestic Relations Department may be included in the Agreement between the Service Employees International Union (SEIU) Local 585, AFL-CIO, the powers inherent in the judicial system supersede that action and further that the Courts have the power to hire, fire and supervise their employees as the Court deems fit." (County's answer, June 9, 1986). Here we have the County, with its statutory duty to bargain for petitioners, agreeing that the question of funeral leave is a question for the petitioners and the petitioners alone.

Pursuant to Section 1702(a) of The County Code, Act of August 9, 1955, P.L. 323, as amended, 16 P.S. ยง 1702(a), the controller's duties are set forth in pertinent part as follows:

The discretionary powers of the controller shall not be applicable to the management of the fiscal policies of the county commissioners, or to matters not involving the accounts and transactions of officers or other persons of the county,

[ 120 Pa. Commw. Page 290]

    but the controller shall refuse to authorize any fiscal transaction which is, by law, subject to his supervision or control where it appears that such transaction is not authorized by law, or has not been undertaken according to law, or has not received approval according to law, or as to which he desires upon reasonable grounds to investigate for or has already discovered any fraud, flagrant abuse of public office or any criminal act or neglect of any officer or other person of the county relating to their public accounts and transactions.

Thus, the Controller's supervision of fiscal affairs does not include the management of county business. Beharry v. Mascara, 101 Pa. Commonwealth Ct. 582, 516 A.2d 872 (1986); Thayer v. McCaslin, 314 Pa. 553, 171 A. 898 (1934).

It is admitted that Ms. Beharry approved payment of a portion of the funeral leave because she believed that portion was reasonable. This action is a further intrusion into the domain of the commissioners and the petitioners. We further believe that, since Ms. Beharry approved payment of a portion, she may not now assert in an inconsistent fashion that any payment is illegal.

With respect to the law clerk issue, we do not believe that disposition of that matter is controlled by PLRB inasmuch as the Controller has not pled that any collective bargaining agreement precluded payment to the law clerk. What we do find applicable is Eshelman which recognizes that the question of leave time of court employees is within the province of the judiciary. And, although Eshelman may be limited in certain circumstances by PLRB, such limitation can only occur where, inter alia, the applicability of a collective bargaining agreement is pled. The Controller argues that "county policy" precludes payment; she does not explain

[ 120 Pa. Commw. Page 291]

    what she means by this. In any event, we think that Eshelman dictates that a mere county policy cannot impinge upon the inherent supervisory authority of the judiciary. In challenging Judge Rodgers' authority to grant his clerk leave, the Controller has, in this case, injected herself into a management decision which is beyond her scope of authority. Beharry; Thayer. Accordingly, we conclude that as a matter of law the Controller had no basis to deny payment to Ms. Morris. Therefore, we shall grant summary judgment on both issues.


Now, October 11, 1988, it is hereby ordered that motion for summary judgment of the Judges of the Court of Common Pleas of the Twenty-Seventh Judicial District is granted in all respects. The Controller is ordered to issue payments to all involved employees for the sums demanded in the petition for review within thirty (30) days of this Order.

This decision was reached prior to the resignation of Judge MacPhail.


Motion for summary judgment granted.

Concurring and Dissenting Opinion by Judge Doyle:

While I concur in almost all respects with the majority's well-written opinion, I write separately to dissent only from that portion which grants summary judgment to the Judges on the issue of funeral leave.

Summary judgment may only be granted where there exists no genuine issue of material fact, and while the Controller was remiss in not attaching the relevant collective bargaining agreement to her answer, see Pa. R.C.P. No. 1019(h), this procedural error could not supply by its omission admissions of material facts or warrant a conclusion that such facts are irrelevant. Rather than prompt this Court to deem such collective bargaining

[ 120 Pa. Commw. Page 292]

    agreement as irrelevant and of no consequence because of the County's admissions, the correct procedure to correct any such omission I believe would have been the filing of preliminary objections to the Controller's answers pursuant to Pa. R.C.P. 1017(2) for lack of conformity to a rule of court. The admissions in the answer of the County, a separate and distinct party, cannot be used as a substitute for admissions against a co-defendant.

We cannot tell from the actual pleadings before us whether the Judges were consulted with respect to the terms pertaining to funeral leave. Additionally, while we believe that Pennsylvania Labor Relations Board v. American Federation of State, County and Municipal Employees, 515 Pa. 23, 526 A.2d 769 (1987), must be given retroactive effect, by its terms it pertains only to court appointed employees. Id. at 25 n.1, 526 A.2d at 770 n.1. We do not know whether the employees of the Domestic Relations Office fall within that category, and thus conclude that there are material facts missing which preclude the entry of summary judgment on this issue. Accordingly, I would deny the Judges' motion for summary judgment on the funeral leave issue and grant the parties leave to amend their pleadings.

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