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BOROUGH PHILIPSBURG v. LEONARD E. BLOOM ET AL. (02/06/89)

decided: February 6, 1989.

BOROUGH OF PHILIPSBURG, APPELLANT
v.
LEONARD E. BLOOM ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Centre County, in the case of Leonard E. Bloom, William H. Loose, and William M. Vogle v. Borough of Philipsburg, No. 86-1593.

COUNSEL

John W. Burge, with him, Michael Brungo, for appellant.

Edward S. Blanarik, Jr., James L. Jubelirer & Associates, for appellees.

Judges Doyle, Barry and McGinley, sitting as a panel of three. Opinion by Judge McGinley. Judge MacPhail did not participate in the decision in this case. Concurring and Dissenting Opinion by Judge Doyle.

Author: Mcginley

[ 123 Pa. Commw. Page 359]

This is an appeal from the order of the Court of Common Pleas of Centre County (trial court), granting the preliminary objections of Leonard E. Bloom, William H. Loose, and William M. Vogle (Appellees) to the New Matter and Counterclaim of the Borough of Philipsburg (Borough). We reverse in part and we affirm in part.

The Appellees were employed as police officers by the Borough. They had been working under the terms of a collective bargaining agreement. At the time the collective bargaining agreement expired, no new collective bargaining agreement had been reached. While negotiations continued, the police worked without a contract. During this period of time, the Appellees were furloughed, and their positions subsequently were eliminated.

On July 1, 1986, the Appellees brought an action alleging that the Borough discharged them in bad faith (because the Borough ended the fiscal year with a surplus) in violation of section 1190 of The Borough Code,*fn1 53 P.S. § 46190; that the furlough constituted a breach of contract; and that the Borough intentionally interfered with the police department's prospective contractual relations. On August 13, 1986, the Borough filed preliminary objections to the complaint in the nature of a demurrer. One of the demurrers alleged that a cause of action would not lie, because the Appellees' only recourse would be to follow the grievance procedures as set forth in their collective bargaining agreement. On December 12, 1986, the trial court dismissed this preliminary objection, although it granted the demurrer to the counts

[ 123 Pa. Commw. Page 360]

    alleging intentional interference with contractual relations.

On January 6, 1987, the Borough filed an Answer with New Matter and Counterclaim. The New Matter alleged that the grievance procedure was the sole and exclusive remedy available to the Appellees, based on the collective bargaining agreement and pursuant to what is popularly known as Act 111, 43 P.S. §§ 217.1-217.10.*fn2 The Counterclaim charged that the Appellees had committed an abuse of process by filing their action, because they allegedly did so merely as a means to coerce the Borough to rehire them. On January 26, 1987, the Appellees filed preliminary objections in the nature of a demurrer to both the New Matter and the Counterclaim. On March 31, 1987, the trial court entered an Opinion and Order granting the demurrer to New Matter, holding that the existence of grievance procedures under the expired contract was irrelevant because the Appellees were not seeking recovery under the expired contract but that instead they were requesting damages for breach of an implied contract and wrongful discharge. The trial court also granted the demurrer to the Counterclaim, based on the Borough's failure to allege any facts which would constitute a willful, improper act on the part of the Appellees which would further their alleged ulterior purpose. The Borough filed a Notice of Appeal from that decision on April 22, 1987.

The Borough alleges that the trial court erred when it granted the demurrer to its New Matter. In support of this allegation the Borough contends that the grievance procedure constituted the Appellees' sole remedy, pursuant to the collective bargaining agreement, even though it had expired, and pursuant to Act 111. The Borough also alleges that the granting of the demurrer to

[ 123 Pa. Commw. Page 361]

    its Counterclaim was in error because the Counterclaim sufficiently set forth a cause of action for the tort of abuse of process. The Borough further alleges that the Counterclaim set forth a sufficient basis for punitive or exemplary damages.*fn3

In an appeal from an order sustaining preliminary objections in the nature of a demurrer, we are constrained to examine only the well-pleaded facts of the complaint; a demurrer admits those facts and any inferences reasonably deducible therefrom. Easton Area Joint Sewer Authority v. Bushkill-Lower Lehigh Joint Sewer Authority, 71 Pa. Commonwealth Ct. 553, 455 A.2d 286 (1983).

The Borough argues that, pursuant to Act 111, grievance procedures are the sole and exclusive method for resolving disputes in all matters in which police claim that a contractual right has been violated. The Borough further contends that the mandatory grievance and arbitration provisions of the collective bargaining agreement control this dispute ...


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