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FRATERNAL ORDER POLICE LODGE NO. 5 AND ROBERT S. HURST v. CITY PHILADELPHIA AND KEVIN M. TUCKER (04/17/89)

filed: April 17, 1989.

FRATERNAL ORDER OF POLICE LODGE NO. 5 AND ROBERT S. HURST, IN HIS CAPACITY AS PRESIDENT, FRATERNAL ORDER OF POLICE LODGE NO. 5, APPELLANTS
v.
CITY OF PHILADELPHIA AND KEVIN M. TUCKER, INDIVIDUALLY AND IN HIS CAPACITY AS POLICE COMMISSIONER, PHILADELPHIA POLICE DEPARTMENT, APPELLEES



Appeal from COMMON PLEAS Court, PHILADELPHIA County; HONORABLE MURRAY C. GOLDMAN, Judge.

COUNSEL

Robert B. Mozenter, Esq., Anthony J. Molloy, Jr., Esq., Mozenter, Molloy & Durst, Philadelphia, Pa., for Appellants

Susan Shinkman, Esq., Divisional Deputy City Solicitor, Ralph J. Teti, Esq., Chief Deputy City Solicitor, Philadelphia, Pa., for Appellees

Before: Honorable James Crumlish, Jr., President Judge, Honorable David W. Craig, Judge, Honorable Joseph T. Doyle, Judge, Honorable James Gardner Colins, Judge, Honorable Madaline Palladino, Judge Honorable Bernard L. McGINLEY, Judge, Honorable Doris A. Smith, Judge

Author: Mcginley

Opinion BY JUDGE BERNARD L. McGINLEY

The Fraternal Order of Police, Lodge No. 5, and Robert S. Hurst in his capacity as Lodge President (collectively, FOP), appeal from an order of the Court of Common Pleas of Philadelphia County (court of common pleas) denying the FOP's preliminary injunction to stay the implementation of a urinalysis drug screening program by the Police Commissioner of the City of Philadelphia (Commissioner). We affirm.

The factual and procedural history of this matter is undisputed. On May 10, 1988, the Commissioner issued a memorandum to the FOP indicating his intent to impose a departmental drug policy, Directive 55, with guidelines and procedures for drug screening of officers through urinalysis. It specifically limits testing to situations where: one, there is reasonable suspicion of illegal drug use or drug abuse; and two, as part of routine physical examinations. The reasonable suspicion provision became effective on May 17, 1988; the remainder was to become effective on August 10, 1988.*fn1

By the terms of Directive 55, routine exams are defined as those regularly scheduled for the Commissioner and all deputy commissioners (yearly) and for promotions, reinstatements, return from extended leaves, transfers and special assignments.*fn2 On May 13, 1988, the FOP filed a complaint in equity seeking a preliminary injunction to enjoin implementation of Directive 55 on the grounds that it was not embodied in a civil service regulation On May 16, 1988, after hearing, the court of common pleas denied the preliminary injunction concluding that the FOP had not established the irreparable harm required for the issuance of an injunction and, also, that the FOP failed to demonstrate a likelihood of prevailing on the merits. The FOP filed a petition for reconsideration/application for supersedeas on appeal which the court of common pleas denied on May 17, 1988. On that date, the FOP filed a notice of appeal and an application for stay or injunction pending appeal. In an order dated May 27, 1988, this Court denied the FOP's application for stay pending appeal. The court of common pleas' order is now before us.*fn3

In Mazzie v. Commonwealth, 495 Pa. 128, 432 A.2d 985 (1981), our Supreme Court has defined the general standard of review for the grant or denial of a preliminary injunction. In Mazzie, the Court stated:

[O]n an appeal from the grant or denial of a preliminary injunction, we do not inquire into the merits of the controversy, but only examine the record to determine if there were any apparently reasonable grounds for the action of the court below. Only if it is plain that no grounds exist to support the decree or that the rule of law relied upon was palpably erroneous or misapplied will we interfere with the decision of the Chancellor.

Id. at 133-34, 432 A.2d at 988 (1981) quoting Roberts v. Board of Directors of School District of Scranton, 462 Pa. 464, 469, 341 A.2d 475, 478 (1975).

A request for a preliminary injunction of any kind should be granted only where a party shows: (a) a high degree of probability of success on the merits; (b) irreparable injury if the status quo is not maintained; and (c) no adequate remedy at law. Burchfield v. Department of Education, 41 Pa. Commonwealth Ct. 121, 399 A.2d 796 (1979).

The Commissioner and the City of Philadelphia (City) argue that the FOP has not established the likelihood that it will prevail on the merits of its appeal and that ...


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