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,
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.
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.
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
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.
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.
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
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
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.
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,  as opposed to
considering only ...