Keslosky v. Old Forge Civil Serv. Comm'n

• Decision Date: 13 September 2013
• Citation: 73 A.3d 665
• Parties: Michael B. KESLOSKY, III, Appellant v. OLD FORGE CIVIL SERVICE COMMISSION and Old Forge Borough.
• Court: Pennsylvania Commonwealth Court

73 A.3d 665

Michael B. KESLOSKY, III, Appellant

v.OLD FORGE CIVIL SERVICE COMMISSION and Old Forge Borough.

Commonwealth Court of Pennsylvania.

Argued March 11, 2013.

Decided July 23, 2013.

Reargument Denied Sept. 13, 2013.

Scott E. Schermerhorn, Scranton, for appellant.

William J. Rinaldi, Scranton, for appellee Old Forge Borough.

BEFORE: LEADBETTER, Judge, and COHN JUBELIRER, Judge, and LEAVITT, Judge.

OPINION BY Judge LEAVITT.

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 personality disorder makes him unsuitable for such work.

R.R. 233 (emphasis in original).

The Police Commission responded on August 16, 2004. It advised the Borough that Keslosky's certification had expired on June 30, 1999, because he had not completed the annual mandatory in-service training. Accordingly, the Borough had to submit a new application for Keslosky's certification, and this application had to include reports of a physical examination and a psychological evaluation.

In accordance with this advice, the Borough informed Keslosky that his certification had expired on June 30, 1999, and that the Borough could not schedule him for work until he was re-certified by the Police Commission. The Borough informed Keslosky that it would pay for a physical examination and a psychological evaluation, both of which had already been scheduled. Keslosky refused, stating that this screening applied only to new hires, not to him. The Borough provided Keslosky with a copy of the Police Commission's August 2004 letter.

In February 2005, the Police Commission wrote to the new Borough Police Chief, Lawrence Semenza, reaffirming its earlier position regarding Keslosky's expired certification. Also in February 2005, the Borough sent Keslosky a written statement of charges seeking his removal from employment because he had not taken the steps necessary for re-certification. Keslosky denied the charges and asserted that the Borough had deliberately caused his certification to lapse by not scheduling him for updates and training.

On April 15, 2005, Keslosky's counsel wrote to the Police Commission expressing his view that Keslosky's certification had not expired on June 30, 1999, because Keslosky had completed Officer Training updates in 1998 and 1999. This made his certification current through June 30, 2001, and gave the Borough until June 30, 2003, to request the Police Commission to re-certify Keslosky.

On April 25, 2005, the Police Commission responded to Keslosky's counsel. ² It explained that Keslosky lacked nine hours of in-service training for 1998 and lacked updated certification in first aid, CPR and duty weapon qualification. Based on these facts, the Police Commission refused to change the 1999 certification expiration it had on file for him.

On June 15, 2005, following a hearing, the Borough Council found that Keslosky had failed to maintain the mandatory current police officer certification and had refused to attend physical and psychological examinations that had been scheduled for him at Borough expense. The Borough Council suspended Keslosky without pay and benefits, effective immediately, until such time as Keslosky obtained a new certification.

Keslosky appealed to the Old Forge Borough Civil Service Commission, which upheld Keslosky's suspension. The Civil Service Commission found that the Police Commission has exclusive authority over certification, and it had determined that Kesloksy's certification lapsed on June 30, 1999. Because Keslosky refused to take steps to become re-certified, his suspension was necessary and proper. In a second hearing, the Civil Service Commission dismissed Keslosky's appeal of the Borough Council's December 16, 2003, reinstatement decision. It concluded that the issue of back pay had been waived because it was not raised to the Borough Council.

Keslosky appealed both decisions of the Civil Service Commission, and the Borough intervened. The trial court heard additional evidence.

Keslosky presented testimony from Beverly Young, the Police Commission's administrative officer, to testify about police officer certification. Certification renewal, which occurs every two years, requires 12 hours of classroom training each year; an annual firearm qualification; and first aid and CPR update training. Officers cannot schedule their own updates and training; the employing police department must do it. Young explained that if an officer's certification lapses, the police department has two years to request a renewal certification, which relieves the officer of having to undergo a complete re-certification.

Young testified about a July 19, 2001, letter from the Police Commission to Police Chief Avvisato, stating that Keslosky had not completed the requisite in-service training by June 30, 2001, and thus, his certification was not renewed in 2001.³The letter advised that “[s]hould you desire to obtain certification for an officer with an expired certification, submit the enclosed Form SP8–502....” R.R. 246. Young testified that the Police Commission did not receive a Form SP8–502.

Young also testified that the above-referenced letter erred by stating that Keslosky's certification expired in 2001. The Police Commission determined that his certification expired on June 30, 1999, and this...