Appeal from Common Pleas Court, Luzerne County; Honorable Gifford S. Cappellini, Judge.
Thomas J. Carlyon, Bigelow, Carlyon, Lucadamo, Sidari, DeJoseph & McNelis, Hazelton, for appellant.
Joseph J. Prociak, Law offices of Moses, Gelso & Prociak, Wilkes Barre, for appellees.
Craig and Doyle, JJ., and Narick, Senior Judge.
[ 129 Pa. Commw. Page 208]
Thomas Albrechta appeals a decision of the Court of Common Pleas of Luzerne County which granted a motion for judgment on the pleadings in favor of the Borough of Shickshinny and the Shickshinny Borough Council and dismissed Albrechta's Complaint in Mandamus. We affirm Judge Cappellini's decision.
The relevant facts as established in the pleadings are as follows. The Shickshinny Borough police force, at all times
[ 129 Pa. Commw. Page 209]
relevant to these proceedings, has been composed of fewer than three members. The borough council hired Albrechta as the fulltime Police Chief on or about September 25, 1986. At that time the Borough had not adopted a resolution or ordinance requiring the police chief to reside in the Borough; however, the Borough, in its answer to Albrechta's complaint, alleges that the Borough hired Albrechta on condition that he become a borough resident within one year of his appointment. On November 10, 1987, the council passed the following resolution:
On motion by Mr. Thomas, seconded by Mr. Kokora, Council unanimously agreed to file and to serve Chief Albrechta with a statement of charges which could lead to his termination as police chief due to his refusal to relocate to the Borough. In the same motion Council unanimously, after a roll call vote, voted to suspend Chief Albrechta without pay effective November 13, 1987.
On or about November 13, 1987, borough manager, Donald Hargraves mailed to Albrechta a written statement of charges against him, which stated:
The charge against you is that you have failed to comply with the Borough's residency requirement as embodied in the official job description for Police Chief adopted by the Borough and provided to you at the time you were hired. You have failed to take up residency in the borough in violation of the Borough's requirement contained in the job description and in violation of your promise that you would move into the Borough within one (1) year of the date of your hiring. In response to the Council's inquiry as to your intentions in this regard, you have stated in writing that you have no intention of taking up residency in the Borough. For this reason, it is proposed that you be terminated as Police Chief for failure to comply with the aforesaid residency requirement.
Please be advised that you have a right to a public hearing with respect to these charges before the Borough Council. You were present at the aforesaid council meeting wherein council directed that the aforesaid charge be ...