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Deforte v. Borough of Worthington

Supreme Court of Pennsylvania

July 17, 2019

WILLIAM DEFORTE, Appellant
v.
BOROUGH OF WORTHINGTON; KEVIN FEENEY, INDIVIDUALLY AND AS MAYOR OF THE BOROUGH OF WORTHINGTON; BARRY ROSEN, INDIVIDUALLY AND AS A MEMBER OF COUNCIL OF THE BOROUGH OF WORTHINGTON AND IN HIS CAPACITY AS ELECTED CONSTABLE FOR THE BOROUGH OF WORTHINGTON AND IN HIS CAPACITY AS PUBLIC SAFETY DIRECTOR OF THE BOROUGH OF WORTHINGTON; GERALD RODGERS, INDIVIDUALLY AND AS A POLICE OFFICER OF THE BOROUGH OF WORTHINGTON, Appellees EVAN TOWNSEND, Appellant
v.
BOROUGH OF WORTHINGTON; KEVIN FEENEY, INDIVIDUALLY AND AS MAYOR OF THE BOROUGH OF WORTHINGTON; BARRY ROSEN, INDIVIDUALLY AND AS A MEMBER OF COUNCIL OF THE BOROUGH OFWORTHINGTON AND IN HIS CAPACITY AS ELECTED CONSTABLE FOR THE BOROUGH OF WORTHINGTON AND IN HIS CAPACITY AS PUBLIC SAFETY DIRECTOR OF THE BOROUGH OF WORTHINGTON, GERALD RODGERS, INDIVIDUALLY AND AS A POLICE OFFICER OF THE BOROUGH OF WORTHINGTON, Appellees

          ARGUED: April 9, 2019

          Certification of Question of Law from the United States Court of Appeals for the Third Circuit at Nos. 17-1923, 17-1924

          SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

          OPINION

          SAYLOR CHIEF JUSTICE

         In this matter we answer a question certified by the United States Court of Appeals for the Third Circuit. The question centrally concerns whether civil-service employment protections apply to the police officers of all borough police departments, regardless of the department's size.

         According to the facts as summarized by the federal appellate court, William DeForte and Evan Townsend ("Plaintiffs") were employed as police officers with the Borough of Worthington (the "Borough"). Neither officer was salaried or received benefits. Instead, they were paid hourly wages and, moreover, were simultaneously employed by other police forces. The Borough's police force consisted of four part-time officers, including Plaintiffs. On November 5, 2012, the Borough terminated Plaintiffs' employment without affording any process.

         Plaintiffs commenced separate actions, which were consolidated, against the Borough in the federal district court. Plaintiffs asserted, inter alia, that the Borough Code or the Tenure Act conferred a constitutionally-protected property interest in their continued employment, and the lack of any process associated with their dismissal violated their federal due process rights. They requested relief under Section 1983 of the Civil Rights Act of 1871. See 42 U.S.C. §1983.[1]

         The Borough moved for summary judgment. In ruling on the motion, the district court considered whether Plaintiffs were entitled to civil-service protections in connection with their dismissal under either the Police Tenure Act, see Act of June 15, 1951, P.L. 586, No. 144 (as amended, 53 Pa.P.S. §§811-816) (the "Tenure Act"), or the Borough Code, see Act of Feb. 1, 1966, P.L. (1965) 1656, No. 581 (as amended 53 P.S. §§45101-46199) (repealed).[2]

         The Borough Code's civil service provisions for police officers appear in subdivision (j) of Article XI of the code. One such provision states: "No person shall be suspended, removed or reduced in rank as a paid employee in any police force . . . of any borough, except in accordance with the provisions of this subdivision." 53 P.S. §46171. Separately, subdivision (j) indicates that a person employed by a borough police force may only be removed for certain enumerated reasons, none of which is alleged to apply here. See id. §46190 (referencing such items as mental or physical disability, being intoxicated on the job, neglect of duty, and engaging in political campaigns). These removal restrictions are not implicated, however, as to any police force of less than three members. See id. §46171. Notably, the Borough Code specifies what qualifies as a police force for purposes of its civil service protections:

Police force as used in subdivision (j) of this article shall mean a police force organized and operating as prescribed by law, the members of which devote their normal working hours to police duty or duty in connection with the bureau, agencies and services connected with police protection work, and who are paid a stated salary or compensation for such work by the borough. Police force as used in this subdivision shall not include: . . .
(4) Any extra police serving from time to time or on an hourly or daily basis[.] . . .

53 P.S. §46195.[3]

         The Tenure Act likewise provides that a "regular full time police officer," 53 P.S. §812, may not be suspended, removed, or reduced in rank except in five specified circumstances, none of which applies here. See id. (referring to items similar to those in 53 P.S. §46190). The act applies to boroughs which are not subject to the Borough Code and have a police force of less than three members (as well as to first-class townships with such police forces and all second-class townships). See id. §811.[4]

         The district court concluded Plaintiffs were part-time officers and, as such, did not devote their normal working hours to police duty for the Borough. The court also expressed that Plaintiffs served from time-to-time and were paid on an hourly basis, thus holding that they were expressly excluded under Section 46195(4). See DeForte v. Borough of Worthington, No. 2:13-cv-00357-MRH, slip op. at 8-9 (W.D. Pa. Mar. 24, 2017). Separately, because the Borough had a total of four officers (including Plaintiffs), the court determined that the Tenure Act was not implicated, as that enactment only applies to boroughs with a police force of fewer than three members. See 53 P.S. §811. In this regard, the district court noted the Commonwealth Court had previously ruled that part-time officers are included in determining the size of a borough police force for Tenure Act purposes. See id. at 14-15 (citing and quoting Mullen v. Borough of Parkesburg, 572 A.2d 859, 861 (Pa. Cmwlth. 1990) (holding that the Tenure Act did not apply because "Mullen, whether full-time or part-time, constitutes the third member of the Borough's police force")).

         Accordingly, the district court granted summary judgment in the Borough's favor and dismissed each Plaintiffs' Section 1983 cause of action. Plaintiffs appealed to the Third Circuit, which led to the present certification.

         In its Petition for Certification, the Third Circuit reasoned that the district court's construction of the statutes might not, by itself, warrant certification as legislation need not govern every entity. However, the appellate court believed the district court's conclusion may be contrary to the General Assembly's intent as understood through a review of judicial decisions. In particular, some common pleas courts have suggested that the "normal working hours" requirement of the Code should be read coterminously with the "regular full time police officer" provision of the Tenure Act. See Huntley v. Boswell Borough, 25 Pa. D. & C.3d 101, 107 (C.P. Somerset 1981); Ambrose v. DuPontBorough, 33 Pa. D. & C.3d 362, 369-70 (C.P. Luzerne 1984). The Third Circuit further developed that, in Petras v. Union Township, 409 Pa. 416, 187 A.2d 171 (1963), this Court discussed the concept of fulltime employment as focusing on "whether . . . the duties were such that [the employee] was 'available for full employment,' that is on call at any and all times," 187 A.2d at 174, [5] as opposed to considering only ...


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