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.
[ 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 ...