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decided: March 16, 1989.


Appeal from the order of the Court of Common Pleas of Philadelphia County in the case of John B. Keen and Fraternal Order of Police, Lodge No. 5 v. City of Philadelphia and Kevin M. Tucker, No. 3466 January Term, 1988.


Steven K. Ludwig, Assistant City Solicitor, with him, Ralph J. Teti, Chief Deputy City Solicitor, and Susan Shinkman, Divisional Deputy City Solicitor, for appellant.

Anthony J. Molloy, Jr., with him, Robert B. Mozenter, Mozenter, Molloy & Durst, for appellees.

Judges Palladino and Smith, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 124 Pa. Commw. Page 214]

The City of Philadelphia (Appellant) appeals an order of the Court of Common Pleas of Philadelphia County (trial court) granting a preliminary injunction which directed Appellant to restore and continue the salary of John B. Keen (Appellee). We reverse.

Appellee was employed as a police officer by the City of Philadelphia. On January 20, 1988, Appellee was suspended without pay from his position after he was arrested by his commanding officer for simple assault, aggravated assault, reckless endangerment of another person, possession of an instrument of crime, and possession of a prohibited offensive weapon.*fn1 At the time Appellee was suspended, he was given a copy of the arrest warrant and was read his Miranda rights. When asked to respond to the charges, Appellee invoked his privilege against self-incrimination. Appellee was thereupon given a written notice of suspension for thirty (30) days with intent to dismiss.*fn2

[ 124 Pa. Commw. Page 215]

Appellee and the Fraternal Order of Police, Lodge No. 5 (FOP) filed a grievance, alleging that the suspension violated the collective bargaining agreement to which FOP and the City of Philadelphia were parties. In addition, on January 21, 1988, Appellee and FOP filed an action in equity with the trial court seeking declaratory and injunctive relief against Appellant and Kevin M. Tucker, the Philadelphia Police Commissioner.*fn3 By order dated January 22, 1988, the trial court issued a temporary restraining order, directing Appellant to resume Appellee's salary as of January 20, 1988 and to continue his salary until Appellant complied with Philadelphia Civil Service Regulation 17.01.*fn4

On January 22, 1988, subsequent to the entry of the trial court's order, Appellant gave Appellee a written notice of intent to dismiss and again discontinued his

[ 124 Pa. Commw. Page 216]

    salary. Joint Exhibit No. 5. The notice provided that Appellee's dismissal would be effective in ten (10) days and advised Appellee that if he believed the intended action was not justified, he was required to respond in writing within the ten day period. The written notice stated that Appellee's off-duty conduct constituted conduct unbecoming an officer and noted that Appellee had been arrested for the conduct. The notice also stated: "You are hereby notified for the same reasons you were suspended without pay from your position effective at the beginning of business on January 20, 1988 for thirty (30) days or until your prior dismissal." Joint Exhibit No. 5.

By order dated January 27, 1988, the trial court granted Appellee's motion for a preliminary injunction and directed Appellant to resume Appellee's salary. Appellant appealed the preliminary injunction to this court.*fn5 Appellee filed an application to vacate the automatic supersedeas, which was granted by the trial court by order dated March 28, 1988. By order dated March 31, 1988, a single judge of this court granted Appellant's application for supersedeas.

On appeal to this court,*fn6 Appellant asserts that the trial court erred in granting a preliminary injunction

[ 124 Pa. Commw. Page 217]

    requiring Appellant to restore and continue Appellee's salary. Appellant contends that Appellee has not established that he will suffer irreparable harm in the absence of the injunction nor that his right to relief is clear.

The standard for granting a preliminary injunction is as follows:

' [F]irst, that it is necessary to prevent immediate and irreparable harm which could not be compensated by damages; second, that greater injury would result by refusing it than granting it; and third, that it properly restores the parties to their status as it existed immediately prior to the alleged wrongful conduct . . . . Even more essential, however, is the determination that the activity sought to be restrained is actionable, and that the injunction issued is reasonably suited to abate such activity. And unless the plaintiff's right is clear and the wrong is manifest, a preliminary injunction will not generally be awarded . . . .'

City of Philadelphia v. District Council 33, 112 Pa. Commonwealth Ct. 90, 100-101, 535 A.2d 231, 236 (1987) (quoting New Castle Orthopedic Associates v. Burns, 481 Pa. 460, 464, 392 A.2d 1383, 1385 (1978)). The first requirement, then, for the issuance of a preliminary injunction is a showing of immediate and irreparable harm which cannot be compensated by damages. See Chambliss v. City of Philadelphia, 112 Pa. Commonwealth Ct. 290, 535 A.2d 291 (1987).

In this case, the trial court determined that, because an officer is automatically suspended if arrested for offduty conduct, per Directive No. 79, such a suspension is the functional equivalent of a discharge. Accordingly, the trial court concluded that Appellant and Police Commissioner were required to follow the procedures applicable to dismissals, i.e., notice and opportunity to be heard as

[ 124 Pa. Commw. Page 218]

    provided in Philadelphia Civil Service Regulation 17.01. The trial court concluded that Appellant's failure to comply with this procedure violated Appellee's due process rights and constituted irreparable harm per se.*fn7 In its opinion in support of its order, the trial court stated as follows:

If on the other hand, as here, what is really done is a dismissal, the immediate cessation of all benefits (under the guise of a thirty day suspension without pay) adds to the traumatizing effect of the arrest. It hinders the officer's ability to marshall his financial and psychological resources to defend against the most serious economic consequences that can possible [sic] be inflicted upon him. To be so hasty to take away his pay, even for thirty days, is nothing more than added punishment and discipline superimposed on the determination to dismiss.

Keen v. City of Philadelphia (No. 3466, January Term, 1988), slip op. at 7.

In concluding that a violation of constitutional rights constitutes irreparable harm per se, the trial court relied upon the United States Supreme Court's decision in Elrod v. Burns, 427 U.S. 347 (1976). In Elrod, non-civil service employees in Illinois brought an action for declaratory and injunctive relief, alleging that their first amendment rights of association had been violated because they had been discharged, or threatened with discharge, from employment on the basis of political affiliation. The

[ 124 Pa. Commw. Page 219]

United States District Court for the Northern District of Illinois denied the employees' request for a preliminary injunction for failure to establish irreparable harm; the United States Court of Appeals for the Seventh Circuit reversed. In upholding the decision of the court of appeals, the United States Supreme Court concluded that "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable harm." 427 U.S. at 373.

We find that Elrod is distinguishable from this case. Elrod involved employees who were discharged, or threatened with discharge, for the exercise of a constitutional right, namely, association with a particular political party. In this case, Appellee was discharged because he had been arrested for off-duty conduct.

Further, the trial court determined that the combined suspension-dismissal violated the Philadelphia Home Rule Charter and Philadelphia Civil Service Regulations.*fn8 The trial court concluded that the Police Commissioner could not use a suspension without pay as the starting point of a dismissal.

[ 124 Pa. Commw. Page 220]

Assuming, without deciding, that the trial court is correct in its analysis of procedure employed by Appellant and the Police Commissioner, we nevertheless conclude that Appellee has not established that he will suffer irreparable harm in the absence of an injunction. The United States Supreme Court has held that:

'Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.'

Sampson v. Murray, 415 U.S. 61, 90 (1974) (quoting Virginia Petroleum Jobbers Assn. v. Federal Power Commission, 259 F.2d 921, 925 (D.C. Cir. 1958)). Review of Appellee's complaint and motion for preliminary injunction discloses that Appellee has alleged no facts to support his assertion that he will suffer irreparable harm.*fn9 While we are sympathetic to Appellee's plight, we do not believe that the denial of one's salary pending the outcome of the instant action constitutes irreparable harm warranting a preliminary injunction.*fn10 Should Appellee prevail on the

[ 124 Pa. Commw. Page 221]

    merits of his claims, he can seek reinstatement, back pay, and damages. Therefore, we conclude that the trial court did not have reasonable grounds to sustain the preliminary injunction.

Accordingly, we reverse.


And Now, March 16, 1989, the order of the Court of Common Pleas of Philadelphia County granting a preliminary injunction in the above-captioned matter is reversed.



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