Borough of Pitcairn v. Westwood

• Decision Date: 29 March 2004
• Citation: 848 A.2d 158
• Parties: BOROUGH OF PITCAIRN v. Ben WESTWOOD, III, Appellant.
• Court: Pennsylvania Commonwealth Court

848 A.2d 158

BOROUGH OF PITCAIRN v. Ben WESTWOOD, III, Appellant.

Commonwealth Court of Pennsylvania.

Argued February 3, 2004.

Decided March 29, 2004.

Reargument Denied May 26, 2004.

Paul D. Boas, Pittsburgh, for appellant.

Craig H. Alexander, Pittsburgh, for appellee.

BEFORE: COLINS, President Judge, SIMPSON, J. (P.), and McCLOSKEY, Senior Judge.

Reargument En Banc Denied May 26, 2004.

OPINION BY Judge SIMPSON.

In this first-impression appeal by a displaced police chief, we consider the effect of full compliance with the statutory civil service process on his appointment by a borough council majority about to leave office. We affirm the conclusion of the Court of Common Pleas of Allegheny County (trial court) that the outgoing council majority improperly sought to bind the successor council to the appointment of the police chief.

As the undisputed sequence of events is important, we detail it here. In August 2001, the chief of police of the Borough of Pitcairn (Borough) announced he would retire the next month. The Borough promptly advertised the position and began accepting applications.

Ben Westwood, III, submitted his application in late August 2001. He, and four others, were interviewed by Borough council on October 27, 2001.

Shortly thereafter, on November 6, 2001, a general election was held. Four members of the seven-member Borough council were not re-elected.

On November 21, 2001, Westwood was nominated by Borough council as police chief. The nomination was forwarded to the Borough's civil service commission. Shortly thereafter, Westwood appeared before the civil service commission and took the non-competitive civil service examination. He was certified by the civil service commission, which strongly recommended his approval for the position of chief of police. The overall process complied with the statutory non-competitive civil service appointment provision for borough police chiefs.

On December 12, 2001, Borough council voted 4-2, with one abstaining, for Westwood's appointment as police chief. The four affirmative votes came from the Borough council members who had been defeated in the November election. Westwood began his duties on January 2, 2002.

After assuming their positions as Borough council members on January 7, 2002, the four newly-elected members together with those remaining from the prior council removed the Borough solicitor and hired a new one. The new solicitor immediately produced a memorandum opining that it was "patently clear that Mr. Westwood's appointment is void as against public policy." On the same day, acting on the opinion of the new solicitor, Borough council terminated Westwood as chief of police. It is undisputed that the abrupt end of Westwood's brief tenure as police chief was not consistent with civil service protection.

Immediately thereafter, Westwood filed an appeal with the civil service commission. The civil service commission took no action. Accordingly, Westwood brought a declaratory judgment action in the trial court.

Aided by well-reasoned argument on cross-motions for summary judgment, the trial court declared Westwood's appointment void as a governmental appointment made by the outgoing council contrary to Lobolito, Inc. v. N. Pocono Sch. Dist., 562 Pa. 380, 755 A.2d 1287 (2000) and Falls Township v. McManamon, 113 Pa. Cmwlth. 504, 537 A.2d 946 (1988). This timely appeal by Westwood followed.

Motions for summary judgment are appropriate under the Declaratory Judgments Act.¹ See 42 Pa.C.S. § 7533; J.R.W., Inc. v. Manchester Borough Council, 148 Pa.Cmwlth. 238, 610 A.2d 1078 (1992). Our review of the trial court's order granting summary judgment is limited to deciding whether the court committed an error of law or abused its discretion. Mountain Vill. v. Bd. of Supervisors of Longswamp Township, 828 A.2d 411 (Pa.Cmwlth.2003). Summary judgment is appropriate when, after review of the record in the light most favorable to the non-moving party, it is determined that no genuine issue of material fact exists and the moving party is entitled to summary judgment as a matter of law. Id.

Westwood contends that because his appointment conformed to statutory civil service procedures, civil service protection should attach. The Borough contends the appointment was void as against public policy, thereby precluding the attachment of civil service protection.

I. Civil Service Protection

Prior to 1941, police employed by boroughs had no civil service or job tenure rights and were subject to peremptory removal by borough council. George v. Moore, 394 Pa. 419, 147 A.2d 148 (1959). What is commonly called the Police Civil Service Act changed this for boroughs employing three or more police officers.² By the Police Civil Service Act, police employed by boroughs were granted job tenure rights which prohibited their dismissal, except for causes stated in the statute and in compliance with the procedures outlined therein. Section 20, 21 of the Police Civil Service Act; 53 P.S. §§ 53270, 53271.

All the provisions of the Police Civil Service Act were repealed and reenacted as part of The Borough Code.³ The reenactment still applied only to boroughs having police forces of three or more members. Sections 1165 and 1185 of The Borough Code. In 1951, the legislature passed what is commonly called the Police Tenure Act,⁴ which extended civil service protection to police forces of less than three members. These provisions were reenacted as part of The Borough Code now in effect.⁵

In Appeal of Gagliardi, 401 Pa. 141, 145-46, 163 A.2d 418, 420 (1960), our Supreme Court held that the purpose of civil service protection in subdivision (j) of the Borough Code then in effect was "to insure the continuance in office of those individuals who are faithful and conscientious in the discharge of their duties and to free these public officers from the fear of political and personal prejudicial reprisal." The Supreme Court concluded that civil service protection was not intended to restrict boroughs from prescribing reasonable and non-discriminatory qualifications for those favored by appointment. It therefore upheld a residency requirement for borough police officers.

In Manning v. Civil Serv. Comm'n, 387 Pa. 176, 127 A.2d 599 (1956), the Supreme Court considered the dismissal of a borough police chief in the context of the civil service protection of the Borough Code then in effect. The Supreme Court concluded that the individual lacked the statutory prerequisites for appointment as a police officer. "Inasmuch as he was never validly employed under the Borough Code as a patrolman, he is not entitled to the protection of its provisions regarding a hearing." Id. at 181, 127 A.2d at 601. The Court concluded: "An employment which in its inception violates [the Borough Code] is illegal and against public policy...." Id. Under these circumstances, the police chief, who served for three years, was effectively removed by the Supreme Court.

Considering the foregoing, we conclude that the purpose of civil service protection for borough police officers is to protect those officers from the fear of political and personal prejudicial reprisal and to favor the borough with their continuance of faithful and conscientious performance. See Gagliardi. However where the employment was illegal and contrary to public policy at its inception, civil service protection does not attach. Manning. Further, no expectation for continuation in office arises under those circumstances. Id.

II. Prohibition Against Binding Successor Bodies

With respect to agreements involving governmental functions of municipal or legislative bodies, our appellate courts repeatedly hold that governing bodies cannot bind their successors. See, e.g., Fraternal Order of Police v. Hickey, 499 Pa. 194, 452 A.2d 1005 (1982)

; Scott v. Phila. Parking

Auth., 402 Pa. 151, 166 A.2d 278 (1960); Mitchell v. Chester Hous. Auth., 389 Pa. 314, 132 A.2d 873 (1957); Born v. City of Pittsburgh, 266 Pa. 128, 109 A. 614 (1920); Moore v. Luzerne County, 262 Pa. 216, 105 A. 94 (1918); McCormick v. Hanover Township, 246 Pa. 169, 92 A. 195 (1914); State Street Bank & Trust Co. v. Commonwealth Treasury Dep't, 712 A.2d 811 (Pa. Cmwlth.1998); Falls Township. Clearly, this authority predates the police civil services acts.

The most recent pronouncement appears in Lobolito, in which our Supreme Court determined whether an agreement to build a new school, entered into by a school board at the expiration of its term, bound the successor school board. Discussing the distinction between governmental functions and proprietary or business type functions, the Court noted (with emphasis added):

In the performance of sovereign or governmental, as distinguished from business or proprietary, functions, no legislative body, or municipal board having legislative authority, can take action which will bind its successors. It cannot enter into a contract which will extend beyond the term for which the members of the body were elected.

562 Pa. at 385, 755 A.2d at 1289 (quoting Commonwealth ex rel. Fortney for Use of Volunteer Fire Dep't v. Bartol, 342 Pa. 172, 175, 20 A.2d 313, 314 (1941)) (citations omitted). The Court went on to explain the reason for this policy:

The obvious purpose of the rule is to permit a newly appointed governmental body to function freely on behalf of the public and in response to the governmental power or body politic by which it was appointed or elected, unhampered by the policies of the predecessors who have since been replaced by the appointing or electing power. To permit the outgoing body to `hamstring' its successors by imposing upon them a policyimplementing [sic] and to some extent, policymaking [sic] machinery, which is not attuned to the new body or its policies, would be to most effectively circumvent the rule.

Id. at 385, 755 A.2d at 1289-90 (quoting Mitchell, 389 Pa. at 324, 132 A.2d at 878). In noting a lone exception...