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Keslosky v. Old Forge Civil Service Commission

Commonwealth Court of Pennsylvania

July 23, 2013

Michael B. Keslosky, III, Appellant
Old Forge Civil Service Commission and Old Forge Borough

Argued: March 11, 2013




Michael B. Keslosky, III, appeals an order of the Court of Common Pleas of Lackawanna County (trial court) upholding a decision of the Old Forge Civil Service Commission to suspend Keslosky from his position as a police officer and deny him back pay. The trial court held that this result was required because Keslosky had not complied with the police officer certification requirements of the Municipal Police Officers' Education and Training Law[1](Officer Training Law). Keslosky contends that the trial court's factual finding that his certification required under the Officer Training Law had expired in 1999 was not supported by substantial evidence. Discerning no merit to this contention, we affirm.

The Officer Training Law created the Municipal Police Officers' Education and Training Commission (Police Commission) to administer police officer training. 53 Pa. C.S. §2164. A municipal police officer must hold a certification issued by the Police Commission before he can be hired to enforce criminal laws, traffic laws or carry a firearm. 53 Pa. C.S. §2167. A certification is valid for a period of two years. 53 Pa. C.S. §2162. Thereafter, in order to retain certification, each police officer must complete yearly in-service training. 53 Pa. C.S. §2164(6). However, a municipality may request the Police Commission to allow

additional time for the officer to comply with the in-service training requirements. Approval of this request shall be made by the commission on a case-by-case basis.

53 Pa. C.S. §2164(6).

Keslosky's employer, Old Forge Borough, hired him as a police officer in 1979. Keslosky's employment was terminated in 1990. Keslosky filed a lawsuit that was settled, and Keslosky returned to work in September 1997.

Keslosky then left work in May 1998 for the stated reason that he had sustained a psychological injury caused by abnormal working conditions. He sought medical and disability benefits by filing a workers' compensation claim. He was denied workers' compensation for the reason that his ongoing mixed personality disorder was neither caused nor aggravated by his working conditions. Keslosky's workers' compensation claim was fully litigated and affirmed on appeal. See Keslosky v. Workers' Compensation Appeal Board (Old Forge Borough), (Pa. Cmwlth., No. 1989 C.D. 2003, filed February 25, 2004), petition for allowance of appeal denied, 581 Pa. 701, 864 A.2d 1206 (2004).

In June 2003, the Borough sent Keslosky a written "statement of charges" informing him that his employment was being terminated because he had not reported to work since May 10, 1998; had exhausted all approved leave time; and had not provided the Borough with a medical release establishing that he was able to return to his job. Reproduced Record at 141 (R.R. __). Keslosky answered the charges, and the Borough Council conducted two hearings at which Keslosky appeared and presented evidence, including, inter alia, a letter from his psychologist, Michael Church, Ph.D., stating that Keslosky was able to return to work as of April 2001.

On December 16, 2003, the Borough Council voted to reinstate Keslosky to employment. The next day, Keslosky's counsel sent a letter to Borough Council demanding back pay of $238, 012.33, calculated as of March 2000 when Keslosky claims he tried to return to work. On December 18, 2003, the Borough issued a written decision reinstating Keslosky to his position; the decision made no mention of Keslosky's back pay demand. Keslosky appealed to the Civil Service Commission. He did not dispute the outcome but, rather, the wording of the findings of fact, which he feared would negatively impact his demand for back pay.

Keslosky did not return to work after his reinstatement because his National Guard unit had been called to active duty. By letter of August 1, 2004, Keslosky informed Borough Police Chief, Frank Avvisato, that he had been released from active duty and requested that he "immediately be scheduled for duty and placed on the active duty roster and be scheduled for any required municipal police updates and training." R.R. 15.

On August 10, 2004, Anthony Torquato, Borough Mayor, wrote to the Executive Director of the Police Commission, Major Richard C. Mooney, requesting guidance on whether Keslosky needed to undergo psychiatric and physical examinations before rejoining the police force after a six-year absence. Torquato's letter quoted from a report of Wolfram Rieger, M.D., which had been credited in the workers' compensation proceeding. In his August 2001 report, Dr. Rieger stated as follows:

When I examined Mr. Keslosky he was not disabled from a psychiatric point of view. However, he should not return to any type of police work because his underlying paranoid ...

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