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WILKINSBURG POLICE OFFICERS ASSOCIATION v. COMMONWEALTH PENNSYLVANIA (09/08/89)

decided: September 8, 1989.

THE WILKINSBURG POLICE OFFICERS ASSOCIATION, BY AND THROUGH ITS TRUSTEES AD LITEM, JERRY HARDER, HANK RIEBOLD AND THOMAS KOCON, PETITIONERS,
v.
THE COMMONWEALTH OF PENNSYLVANIA, COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF COMMUNITY AFFAIRS AND THE BOROUGH OF WILKINSBURG, RESPONDENTS



PETITION FOR REVIEW .

COUNSEL

Anthony C. Busillo, II, The Law Firm of Gary M. Lightman, Harrisburg, for petitioners.

W. Timothy Barry, Dattilo, Barry, Fasulo & Cambest, Pittsburgh, for Borough of Wilkinsburg.

Ernest R. Closser, III, Andrew H. Cline, Gregory Dunlap, Deputy Gen. Counsels, Office of General Counsel, Harrisburg, for Com. of Pa. and Dept. of Community Affairs.

Crumlish, Jr., President Judge, and Doyle, Colins, Palladino and McGinley, JJ. Barry, J., did not participate in the decision in this case.

Author: Mcginley

[ 129 Pa. Commw. Page 49]

The Wilkinsburg Police Officers Association (Association) and its trustees brought an action within this Court's original jurisdiction seeking a declaration that the Financially Distressed Municipalities Act*fn1 (commonly referred to as "Act 47") violates the Constitution of this Commonwealth.

[ 129 Pa. Commw. Page 50]

Generally, Act 47 establishes criteria by which to determine whether a municipality is financially distressed, and sets forth procedures for promulgating and implementing a financial plan geared toward ameliorating the municipality's financial condition. Pursuant to the provisions of Act 47, the Borough of Wilkinsburg (Borough) was determined to be a distressed municipality. Subsequent to that determination a fiscal recovery plan was developed, which plan the Borough Council adopted via passage of an ordinance. The Association commenced this action against the Borough, the Commonwealth of Pennsylvania and the Commonwealth of Pennsylvania, Department of Community Affairs (Department) (collectively, Commonwealth Respondents), alleging that Act 47 is unconstitutional. The Borough and the Commonwealth Respondents filed preliminary objections.

A brief synopsis of Act 47 is germane to this discussion. The act provides that within 30 days following a determination that a municipality is in financial distress,*fn2 the Secretary of Community Affairs shall appoint a coordinator to prepare a plan addressing the municipality's financial problems.*fn3 The plan may incorporate numerous factors, including, inter alia, projections of revenue, elimination of deficits, and avoidance of future fiscal emergencies.*fn4 The act includes a time frame within which a municipality must enact an ordinance either approving the implementation of the plan, or rejecting the plan.*fn5 If the governing body of the municipality enacts an ordinance approving the plan, but the chief executive officer of the municipality refuses to implement the plan, or if the governing body of the municipality refuses to enact an ordinance approving the plan, the statute requires the chief executive officer of the municipality to develop an alternate plan.*fn6 Sections 248, 251 and 264

[ 129 Pa. Commw. Page 51]

    of Act 47*fn7 provide that if the municipality fails to adopt a plan or fails to implement an adopted plan, all state funding will be withheld,*fn8 and Act 47 allows only three narrowly-drawn exceptions, in which funding will be permitted.*fn9 Of particular relevance to the matter at hand is Section 252 of Act 47, which provides that: "[a] collective bargaining agreement or arbitration settlement executed after the adoption of a plan shall not in any manner violate, expand or diminish its provisions."*fn10

A brief synopsis of the Association's petition for review in the nature of an action for declaratory judgment is also useful at this juncture. In Count I of its complaint, the Association contends that the manner in which the Borough has implemented its financial recovery plan violates many of the provisions of the collective bargaining agreement which exists between the Association and the Borough. The Association requests that this Court: a) declare that the recovery plan represents an unconstitutional violation and/or impairment of the Association's contractual rights; b) direct the plan to be set aside or modified to the extent that it abridges the Association's contractual rights; c) award damages to officers who have been harmed by implementation of the plan; d) award costs; and e) order any other appropriate relief.

In Count II, the Association alleges that through the threatened loss of state funding to municipalities which do

[ 129 Pa. Commw. Page 52]

    not adopt plans, Sections 248, 251 and 264 of Act 47 coerce municipalities into adopting plans. The Association contends that for all practical purposes the municipality has no choice but to adopt a plan. The Association further contends that because approval of any plan must be obtained from the Secretary of Community Affairs, the General Assembly has thus delegated municipal budgetary functions to the Coordinator and to the Secretary, in violation of Article III, Section 31 of the Pennsylvania Constitution. The Association requests that this Court declare Sections 248, 251 and 264 of Act 47 to be unconstitutional.

In Count III, the Association makes a related argument. It contends that Section 252 of Act 47 restricts a municipality's power to enter into collective bargaining agreements. The Association further argues that, by giving or denying approval of plans, the Secretary of Community Affairs retains the power over a municipality's collective bargaining agreements. The Association contends that the delegation of this municipal function to the Secretary constitutes a violation of Article III, Section 31 of the Pennsylvania Constitution. The Association requests that this Court declare Section 252 of Act 47 to be unconstitutional.

In Count IV, the Association contends that Section 252 of Act 47 is a bar to prospective bargaining agreements or arbitration awards, and that to whatever extent Section 252 of Act 47 is a bar to prospective bargaining agreements or arbitration awards, it violates Article III, Section 31 of the Pennsylvania Constitution.*fn11 The Association requests that

[ 129 Pa. Commw. Page 53]

    this court declare Section 252 of Act 47 to ...


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