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08/14/97 MATTER MARK PENTZ NEWTOWN TOWNSHIP

August 14, 1997

IN RE: THE MATTER OF MARK PENTZ, NEWTOWN TOWNSHIP, APPELLANT


Appealed From No. 95-09654-20-6. Common Pleas Court of the County of Bucks. Judge McANDREWS.

Before: Honorable James Gardner Colins, President Judge, Honorable Joseph T. Doyle, Judge, Honorable Doris A. Smith, Judge, Honorable James R. Kelley, Judge, Honorable Bonnie Brigance Leadbetter, Judge. Opinion BY Judge Doyle. Dissenting Opinion By: Judge Smith.

The opinion of the court was delivered by: Doyle

OPINION BY JUDGE DOYLE

FILED: August 14, 1997

The sole issue for our review in this appeal is whether the Board of Supervisors (Board) of Newtown Township committed an abuse of discretion or error of law when it reduced Officer Mark Pentz's rank pursuant to a Pennsylvania Labor Relations Board (PLRB) order to "rescind the unilateral promotion to sergeant of Officer Patton and restore the status quo ante." For the reasons set forth below, we find no error by the Board, and, therefore, we reverse the order of the Court of Common Pleas of Bucks County which reinstated Officer Pentz to the rank of corporal.

The record reveals the following facts. In February of 1990, the Board promoted corporal Charles Patton to the rank of sergeant to fill an existing vacancy. The Board made its decision based solely on the recommendation of the chief of police. On the same day, the Board promoted Officer Pentz from the rank of patrolman to the rank of corporal to fill the vacancy created by Officer Patton's promotion. Unlike Officer Patton, the promotion of Officer Pentz was based on his length of service with the police department, and his performance in both written and oral testing.

The Newtown Township Police Benevolent Association (PBA), the bargaining unit of the township police force, filed a charge of an unfair labor practice with the PLRB under the Pennsylvania Labor Relations Act *fn1 and Act 111 *fn2 alleging that the promotion of Officer Patton to the position of sergeant should have been filled through competitive testing procedures. On August 4, 1995, the PLRB hearing examiner issued a decision and order which found that the promotion of Officer Patton to sergeant was a violation of Sections 6(1)(a) and (e) of the PLRA and Act 111. Its order directed, in pertinent part, that the Township "rescind the unilateral promotion to sergeant of Officer Patton and restore the status quo ante." (Emphasis added.) The PLRB decision made no specific mention of Officer Pentz.

The PBA agreed with the Township that the language "restore the status quo ante" mandated a reduction in rank for both Officers Patton and Pentz. The Township notified Officer Patton and Officer Pentz that they were being returned to their prior rank in compliance with the valid PLRB order. *fn3 Following this notice, Officer Pentz requested and was granted an administrative hearing before the Board, alleging that his reduction in rank violated the Police Tenure Act (Act). *fn4 The Board held that there was no violation of the Police Tenure Act because the enforcement action was in direct compliance with a PLRB order.

Officer Pentz appealed to Common Pleas which vacated the Board's order and further ordered that Officer Pentz be restored to the rank of corporal effective the date of his reduction in rank. The trial court concluded that, in reaching its decision, the PLRB did not consider Officer Pentz's promotion. The trial court then held that the Township violated Section 812 of the Act by "demoting" Officer Pentz.

On appeal, the Township argues that the Board acted within its discretion in interpreting the PLRB order as requiring the vacation of the corporal's position as well as the sergeant's position and the reinstatement of both officers to their previous rank. *fn5 It contends that the Board found that the only reason the corporal's position was available was because the Township committed an unfair labor practice by promoting Officer Patton, and Officer Pentz cannot claim entitlement to a position created by an illegal act. Moreover, if the Board did not reduce Officer Pentz in rank, the Township would have had five corporals instead of only four. *fn6 Thus, in demoting Officer Pentz, the Township was merely restoring the "status quo ante" which existed before Officer Patton's unlawful promotion from corporal to sergeant. Additionally, the Township argues that, pursuant to the trial court's reasoning, the order of the PLRB would be completely unenforceable because the order to reduce Officer Patton from sergeant to corporal did not comply with the Police Tenure Act either.

Officer Pentz, however, relies upon our decision in Falls Township v. Police Association of Falls Township, 134 Pa. Commw. 255, 579 A.2d 430 (Pa. Commw. 1990) in arguing that the Township improperly demoted him. In Falls Township, the township eliminated the post of lieutenant in February of 1986 for budgetary reasons and reduced in rank the then present lieutenant to the position of sergeant which was then held by Officer Wynne Cloud. *fn7 The township then demoted Cloud to make way for the lieutenant. Thereafter, a sergeant's position became vacant to which Cloud was appointed on January 1, 1988.

Officer Robert Macchia filed a grievance protesting Cloud's 1988 promotion as violating the collective bargaining agreement because no new examination was held and, as a result, no new eligibility list was created. The arbitrator agreed with Macchia that Cloud's promotion violated the agreement and issued an order rescinding the promotion. The township filed a petition to vacate the arbitration award in the trial court and Cloud filed a petition to intervene, which was granted. The township and Cloud then both filed motions for summary judgment. The trial court, concluding that the arbitrator exceeded his authority by rescinding the 1988 promotion, granted the motions for summary judgment.

On appeal to this Court, the township and Cloud argued that, because Cloud was demoted in 1986 without just cause, he remained entitled to the rank of sergeant pursuant to his original promotion in 1985 under the Police Tenure Act. We concluded that Cloud was demoted from his 1985 promotion solely for budgetary reasons, which did not constitute just cause under the Police Tenure Act. Therefore, we agreed that he remained entitled to the rank of sergeant at the time of his 1988 promotion. Succinctly stated, we held that demoting, or reducing in rank, a police officer once legitimately promoted, for budgetary reasons only, did not constitute "just cause" under the Police Tenure Act.

In contrast, after thoroughly reviewing the matter presently before us, we conclude that Officer Pentz was not entitled to the rank of corporal. It is clear that the only reason the corporal position was available was because the Township committed an unfair labor practice in promoting Officer Patton. Indeed, Officer Pentz does not contend that he would have been entitled to the promotion absent the Township's illegal act. As such, Officer Pentz cannot seek the protection of the Police Tenure Act. In contrast to our holding in Falls Township, we find that the reduction in rank of a police officer in ...


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