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Tyrone Fire Patrol Co. v. Tyrone Borough

Commonwealth Court of Pennsylvania

March 21, 2014

Tyrone Fire Patrol Company, No. 1, a Pennsylvania Corporation, and Ralph Stimer, Eugene Zimmerman, and Thomas Fetters, all adult individuals, Appellants
v.
Tyrone Borough, a home rule municipality

Argued: December 9, 2013.

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[Copyrighted Material Omitted]

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Appealed from No. GD 2011-2511. Common Pleas Court of the County of Blair. Sullivan, J.

Robert P. Petyak, Ebensburg, for appellants.

Daniel L. Stants, Altoona, for appellee.

BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE BERNARD L. McGINLEY, Judge (P.), HONORABLE PATRICIA A. McCULLOUGH, Judge. OPINION BY JUDGE McCULLOUGH.

OPINION

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PATRICIA A. McCULLOUGH, Judge

The Tyrone Fire Patrol Company, No. 1, (Patrol) and Ralph Stimer (Stimer), Eugene Zimmerman (Zimmerman), and Thomas Fetters (Fetters) (collectively, Appellants) appeal from the February 12, 2013 order of the Court of Common Pleas of Blair County (trial court) granting the motion for summary judgment filed by Tyrone Borough (Borough) and dismissing Appellants' complaint with prejudice. We affirm.

I. Statutory History

The Borough created the Patrol, which was incorporated on June 15, 1893, " for the purpose and object of protecting the property of the Citizens of Tyrone from the ravages of fire." (Reproduced Record (R.R.) at 259a-61a.) On June 18, 1941, the Commonwealth enacted sections 1201 through 1203 of the Health and Safety Act,[1] which are now repealed and replaced by sections 7431 through 7437 of the

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Emergency Management Services Code (EMS Code).[2] The Health and Safety Act provided the procedure for the nomination and confirmation of special fire police and set forth the powers given to fire police. Pursuant to the Health and Safety Act, the Borough established the Tyrone Fire Police (Fire Police), an unincorporated association, whose members were members of and nominated by the Borough's fire companies and provided fire protection services within the Borough. (Trial court op. at 1.)

The Borough asserts that the first nominated members of the Fire Police were confirmed in 1949; however, the earliest ordinance in the record related to the Fire Police is Ordinance No. 516,[3] which the Borough enacted on November 2, 1953. This ordinance authorized the " Fire Police of the Borough of Tyrone" to use flashing blue lights on its vehicles when responding to emergencies. (R.R. at 199a.) Ordinance No. 568,[4] enacted by the Borough on July 7, 1958, provided the earliest standards for the nomination and appointment of Fire Police members. (Trial court op. at 2; see R.R. at 200a.) The Borough amended this ordinance by enacting Ordinance No. 572[5] on November 6, 1958,

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(R.R. at 200a), and then, on April 9, 2001, enacted Ordinance No. 1180,[6] which repealed and replaced any ordinances that were inconsistent. Ordinance No. 1180 specifically authorized the " Tyrone Fire police" to provide traffic and crowd control services during emergency responses by the Borough's fire companies and civic events when requested by the Borough. (R.R. at 205a-08a.) Throughout the history of the Fire Police, the Borough contemplated that Fire Police members would first be active members of a Borough fire company in order to be eligible to serve as fire police and that the Borough would have the authority to remove Fire Police members from this position at the Borough's discretion. Thus, the Borough's removal of a Fire Police member from his position would not mandate the removal of that member from a Borough fire company.[7] Pursuant to section 7437 of the EMS Code, Fire Police members are under the control of the chief of police of the Borough. 35 Pa.C.S. § 7437 (" All special fire police when on duty shall display a badge of authority and shall be subject to the control of the chief of police, if any, of the . . . borough . . . in which they are serving, or, if none, of a member of the Pennsylvania State Police." ).

II. Procedural History

The Fire Police applied to the United States Department of Agriculture (USDA) for grant money in order to purchase a new vehicle. (R.R. at 188a.) On April 13, 2010, the Fire Police received a letter from the USDA that directed the Fire Police to re-adopt the name of the Patrol in order to obtain the grant for purchase of the vehicle. (R.R. at 187a-88a.) At that time, the Patrol was a dormant corporation and had not been in operation for years. (Trial court op. at 2.) On May 6, 2010, members of the Fire Police began the process of changing the name of the Fire Police to the Patrol, ultimately convincing its membership to approve the name change by vote without prior consultation with the

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Borough. (Trial court op. at 2-3; R.R. at 288a.) After the name change, Appellants changed the name on all bank accounts from the Fire Police to the Patrol and also voted to sell the Fire Police's only vehicle to Stimer. (Trial court op. at 3.) The entity then operating under the name of the Patrol re-applied for the USDA grant. (Trial court op. at 3.) Subsequently, the Patrol changed the locks on the Fire Police building, which had been leased to the Fire Police by the Borough from April 10, 1974 to April 14, 2024. (Trial court op. at 3; R.R. at 255a-57a.)

On March 14, 2011, the Borough enacted Ordinance No. 1310,[8] which repealed and replaced any prior inconsistent ordinances. In pertinent part, Ordinance No. 1310 states as follows:

§ 20-16. Nomination and Membership.
The fire chiefs of the Fire Companies comprising the Tyrone Fire Department, namely, the Blazing Arrow Hook & Ladder Volunteer Fire Company and Neptune Volunteer Fire Company Number 1, jointly shall nominate from time to time active members of either of said Fire Companies, and when confirmed by the Borough Council and sworn by the Mayor as required by law, said individuals shall become members of the " Tyrone Fire Police." Every such member shall serve at the pleasure of Borough Council, and Council shall have the authority to remove any member of the Tyrone Fire Police at any time for any reason including, but not limited to, conduct unbecoming a fire police member; failure to maintain any of the qualification [sic] set forth in Section 20-17; and/or upon recommendation from the Fire Company of which the fire police person is a member.
* * *
§ 20-17. Qualifications.
No person shall be nominated for or appointed to the Tyrone Fire Police who has not attained the age of twenty-one (21) years. All fire police shall, at all times, be members in good standing of one [of] the two above named fire companies which comprise the Tyrone Fire Department and must maintain a valid driver's license. . . .
All persons, prior to appointment as fire police, and within six (6) months of the effective date of this Article, all current Fire Police members, shall undergo criminal background checks (NCI and child abuse -- at the expense of the Borough) and shall receive the following certifications:
1. Basic and Advanced Fire Police Training;
2. Highway Safety Training;
3. EMIS Training; and/or
4. Any other such training required by the Borough from time to time, by resolution of the Borough Council.
* * *
§ 20-19. Powers.
The fire police shall have full police powers, as provided by law, when displaying a badge of authority, to regulate traffic, keep crowds under control and to prevent interference by the public at the scene of parades, accidents, floods or other emergencies. In addition, the fire police shall properly rope off the scene of any conflagration immediately after their arrival at the scene. Together with the members of the Borough Police Force and other authorized law enforcement officers, the Fire ...

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