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IN RE LOWER MERION TWP.

August 5, 1997

IN RE: LOWER MERION TOWNSHIP, FIRE DEPARTMENT LABOR STANDARDS LITIGATION


The opinion of the court was delivered by: DALZELL

 Dalzell, J.

 August 5, 1997

 This is a dispute between fourteen firemen and the various volunteer fire departments in the Township of Lower Merion that employ them over the fire departments' liability for overtime pay under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (the "FLSA").

 Plaintiffs, paid firefighters employed by five defendant fire companies, originally filed five separate actions, each naming one of the fire departments as a defendant. Because the individually-filed cases involved common questions of law, we consolidated them under the above caption for all purposes, pursuant to Fed. R. Civ. P. 42(a).

 Defendants have moved for summary judgment, and the plaintiffs have moved for partial summary judgment. The motions distill into one discrete and close question of law, whether the defendant fire departments are agencies of the Township of Lower Merion. Because we hold they are not, we shall grant plaintiffs' motion and deny defendants'.

 I. Factual Background

 The parties have submitted a set of stipulated facts and an appendix of exhibits, from which we have drawn the facts necessary to the following discussion. As will be seen, in order to appraise the parties' legal contentions under the FLSA, it is necessary to have a detailed understanding of these five fire companies and their relationship with the Township.

 A. Internal Structure of the Individual Fire Departments

 Each of the defendant fire departments is a non-profit corporation duly organized and existing under the laws of the Commonwealth of Pennsylvania. Each was incorporated for the exclusive purpose of providing fire protection services to various areas within Lower Merion Township, and all began their existence as entirely volunteer organizations. None of the fire departments was incorporated by Lower Merion Township, Montgomery County, or the Commonwealth of Pennsylvania, see Stip. Exs. 6-10, and none of them has the power to levy taxes. Stip. No. 44.

 The internal organization of these fire departments varies. All, however, share the common characteristic that the citizens of the respective areas have no role in the election of the governing boards of the departments. Stip. No. 43.

 Specifically, defendant Union Fire Co., which was incorporated in 1903, is governed by a Board of Directors elected by the members of the fire department. The Board of Directors, in turn, elects the President of the company. The members of the company elect the Chief, who is the officer in charge of the actual firefighting and of the training of the firefighters. See Stip. Ex. 6 (By-laws of the Union Fire Co.).

 Defendant Merion Fire Co., incorporated in 1890, is governed by a Board of Managers elected by the members of the department. The Board of Managers elects the President of the company, and the members of the Fire Brigade (those members of the company who are active firefighters) elect the Chief. See Stip. Ex. 7 at Article X (By-laws of Merion Fire Co.). Defendants Gladwyne Fire Co., founded in 1944, and Penn Wynne Fire Co., founded in 1928, have similar organizations. See Stip. Ex. 8 (By-laws of Gladwyne Fire Co.) and Stip. Ex. 10 (By-laws of Penn Wynne Fire Co.).

 The Belmont Hills Fire Co. also is governed by a Board of Directors, but the membership, rather than the Board, elects the President. See Stip. Ex. 9 (By-laws of Belmont Hills Fire Co.). The members also elect the Chief. Id.

 B. The Lower Merion Fire Department

 The Lower Merion Township Board of Commissioners in 1908 established the Lower Merion Township Fire Department ("L.M.F.D."). Stip. P 16. The purpose of the L.M.F.D. is to coordinate fire protection activities. Stip. P 16. The Chief Fire Officer, a full-time paid employee of the Township, is the head of the L.M.F.D. Stip. at P 18. The L.M.F.D. employs five other full-time Township employees, a Deputy Chief, three Deputy Fire Marshals, and a clerk. See Stip. Ex. 12 at 1st page. Other than these six employees, the L.M.F.D. does not employ any paid professional firefighters. Stip. P 19.

 The L.M.F.D. is governed, pursuant to the Township Fire Code, by a Board of Directors which consists of "the elected Presidents and Fire Chiefs of the volunteer Fire Companies, the Chairman of [the] Fire Committee of the Township's Board of Commissioners (the Township's elected council), the Township Manager and the Chief Fire Officer." Stip. P 21. The Board of Directors is directly responsible to the Township Board of Commissioners. Id. at P 22.

 C. The Employment Relationship Between the Fire Departments and the Firefighters

 Because there are often not enough volunteers to handle the equipment, the departments each employ three paid firefighters. These paid firefighters, known as "housemen," receive the same training as the volunteer firefighters, but perform additional tasks. Stip. P 35. The housemen are responsible for maintenance of the fire equipment and the fire house, and for driving the equipment. See, e.g., Stip. Ex. 27 at Section V (Employee Policy and Procedural Manual of Union Fire Assoc.). The plaintiffs are current and former housemen in the five departments. See Stip. at PP 1-5.

 Not one of the plaintiffs is, by virtue of his employment in the fire departments, an employee of the Township of Lower Merion, and Lower Merion does not employ any paid firefighters in the Lower Merion Fire Department. Stip. Nos. 19 & 42.

 D. The Relationship Between The Lower Merion Fire Department and the Fire Departments

 Each of the five departments is a member of the L.M.F.D.. Stip. at P 17. The bylaws of the Lower Merion Fire Department and the Lower Merion Fire Prevention Code state that:

 
Each volunteer fire company shall operate under its own bylaws, which shall be in accordance with generally accepted standards for similar organizations and with accounting procedures approved by the certified public accountants of the township. Nothing in this chapter is intended to restrict or hamper the internal organization of the volunteer fire companies.

 Stip. Ex. 11 at p 5.

 The Township Fire Code requires each fire department, as a condition to receiving Township money, to submit a proposed budget, appropriation requests, quarterly reports, and budget reports to the Township Manager. Stip. P 25; see also Stip. Ex. 11 at 6 ("Annual appropriations shall be made by the Board of Commissioners to each volunteer fire company in the township which is a member of the Fire Department, subject to such reasonable conditions as the Board of Commissioners may from time to time see fit to impose."). To date, each of the fire departments has complied with this requirement. Id. at 25. Each department must submit to an annual appraisal by Township auditors, the results of which are reported to the Township Board of Commissioners, and the Commissioners use the audit to determine the amount of each individual fire department's annual appropriation. Stip. P 26.

 As noted above, none of the housemen is, by virtue of his employment with a particular fire department, an employee of the Lower Merion Fire Department. However, "township funds are used to pay the salaries of the volunteer fire companies' housemen. In addition, the Township directly reimburses the volunteer fire companies for the cost of providing workmen's compensation insurance for the housemen." Stip. P 36.

 The Township in 1966 "specifically required each volunteer fire company to add a third houseman and increased its annual appropriation to the individual volunteer fire companies to pay for the services of the additional houseman." Stip. P 37. The Township also requires that each fire department, "under the direction of the Township Chief Fire Officer," train its firefighters. Stip. P 23. One of the Deputy Fire Marshals, known as the Training Officer, who is a paid full-time Township employee, "provides oversight and assistance for each volunteer fire company's training program." Stip. P 30.

 The L.M.F.D. operates as a coordinating force among the departments, though it does not assume direct control over the ...


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