Lower Merion Tp. v. Turkelson

• Decision Date: 23 March 1961
• Citation: 403 Pa. 72,169 A.2d 97
• Parties: LOWER MERION TOWNSHIP v. Glenn A. TURKELSON, Appellant.
• Court: Pennsylvania Supreme Court

Page 97

169 A.2d 97

403 Pa. 72

LOWER MERION TOWNSHIP v. Glenn A. TURKELSON, Appellant.

Supreme Court of Pennsylvania.

March 23, 1961.

Smillie, Bean, Davis & Tredinnick, Frederick B. Smillie, Norristown, for appellant.

John E. Forsythe, Tp. Sol., Edmund B. Spaeth, Jr., Philadelphia, Wright, Mauck & Spencer, Norristown, for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R. JONES, COHEN, BOK, and EAGEN, JJ.

BENJAMIN R. JONES, Justice.

Glenn A. Turkelson, a member of the Lower Merion Township police department, on March 7, 1958 was suspended from duty on a charge of having failed to account for money received by him in his official capacity. After hearing, the Civil Service Commission of Lower Merion Township found Turkelson guilty of a violation of the Police Code of Discipline and directed that he be removed from the police force as of March 7, 1958. Turkelson then appealed to the Court of Common Pleas of Montgomery County and Judge Groshens of that court reversed the Commission's order and reinstated Turkelson as a police officer as of June 1, 1958 'with pay from that date.' The township appealed to this Court and we affirmed Turkelson's reinstatement as of June 1, 1958 (Lower Merion Township v. Turkelson, 396 Pa. 374, 152 A.2d 724).

Subsequent to the decision of this Court, Turkelson on July 9, 1959 reported for duty and then submitted his resignation as a police officer without prejudice. Turkelson then demanded that the Township pay him his salary of $5,534.03 from June 1, 1958 [the date of his reinstatement] to July 9, 1959 [the date of his resignation]. The township refused payment upon the ground that during the period Turkelson was off the police force he had been employed by the Post Office Department at which employment he earned $5,690.60, and that such sum constituted a set-off against Turkelson's claim for salary.

On September 25, 1959, Turkelson filed a petition in the Court of Common Pleas of Montgomery seeking to hold the Township Commissioners in contempt for failure to obey the order of the court reinstating Turkelson 'with pay from June 1, 1958 * * *.' On October 21, 1959, this petition was amended to a rule to show cause why Turkelson's salary should not be paid and, after answer thereto and argument thereon, the court dismissed Turkelson's petition and rule and from the court's action this appeal has been taken.

The only question before us is whether Turkelson was entitled to be paid his salary as a police officer during the period of his improper dismissal without the deduction of any moneys earned in other employment by him during the same period of time. In support of its position, the township relies upon Vega v. Burgettstown Borough, 394 Pa. 406, 147 A.2d 620, wherein we held that, in an action by a Chief of Police against a municipality to recover salary for the period during which he was improperly dismissed, the municipality had the right to set off against such salary any amount earned by him in a private capacity during that period.

Turkelson's argument is two-fold: (1) that Vega does not control the instant factual situation and (2) if Vega does so control, Vega was erroneously decided and should be reconsidered and overruled.

In Vega, the statute ¹ provided that in the event a policeman who had been suspended or removed should be reinstated, he 'shall be reinstated with full pay for the period during which he was suspended.' The Township Code, ² under the authority of which Turkelson was originally suspended and later reinstated, contains exactly the same language. Turkelson would differentiate Vega from the present situation upon the ground that in Vega the statute which provided for an appeal differs in wording from the statute which provides an appeal in the instant situation. Section 5 of the General Municipal Law, supra (53 P.S. § 815), under which Vega was suspended, provides: 'the suspended * * * employee shall have the right to appeal to the court of common pleas of the county in which he was employed.' Section 645, art. VI (53 P.S. § 55645) of the Township Code, under which Turkelson was suspended, prvides: '* * * the person suspended * * * shall have immediate right of appeal to the court of common pleas of the county and the case shall * * * be determined as the court deems proper.' (Emphasis supplied.) From the phrase 'as the court deems proper' Turkelson argues that the court is vested with plenary authority to direct reinstatement with full pay regardless of any amount which might be earned by the police officer in other employment during the period the police officer was not on his official duties, and, that our Court by affirmance of the lower court's order in Lower Merion Township v. Turkelson, supra, did reinstate Turkelson with full pay and precluded the township from setting off that amount of salary which Turkelson earned in the Post Office Department. The exact wording of the lower court's order which we affirmed 'reinstated [Turkelson] * * * as of June 1, 1958 with pay from that date.'

Turkelson's argument in this respect is without merit. In Lower Merion Township v. Turkelson, supra, the issue was not raised nor did this Court, either expressly or by implication, indicate that Turkelson was to be reinstated without any deduction for moneys he had earned during the period he was off the police force and in private employment. Turkelson's argument is a complete misconception and misconstruction of the order of the court in Lower Merion Township v. Turkelson, supra.

Vega directly controls the present situation. The legislature by permitting reinstatement of a police officer with full pay simply protected the dismissed employee [394 Pa. 406, 147 A.2d 622] 'from possible economic retribution by the discharging authority upon reinstatement' and it was not the legislative intent that a reinstated police officer should receive both service-connected and non-service-connected salaries for the same period of time.

On reconsideration, we fully affirm the ruling in Vega, a ruling which negatives Turkelson's present claim.

Order affirmed. Costs on Turkelson.

MUSMANNO, Justice (dissenting).

One of the specious lay criticisms (sometimes advanced semi-humorously) against the law is that it speaks and employs a language which is often unintelligible to the public. Thus, the average nonprofessional might have difficulty in understanding what a Court means when it says: Benigne faciendae sunt interpretationes, propter simplicitatem laicorum, ut res magis valeat quam pereat et verba intentioni, non e contra, debent inservire.

Fortunately, in recent years, lawyers and judges have been using less Latin and overly formalistic phrases, and this is commendable and desirable. However, there is still a deplorable tendency on the part of the Courts to 'interpret' the English language in a way which not only mystifies the non-legal population but confuses even lawyers and others trained to understand the medieval abracadabra of the law. This case is in point.

Glenn A. Turkelson, a policeman in Lower Merion Township, Montgomery County, was dismissed as of March 7, 1958 because of alleged violation of the Police Code of Discipline. He appealed the dismissal to the Court of Common Pleas of Montgomery County which reversed the order of the Civil Service Commission and reinstated Turkelson as of June 1, 1958, 'with pay from that date.' The township appealed to this Court which affirmed the decision of the Court of Common Pleas (396 Pa. 374, 152 A.2d 724). In accordance with that affirmance Turkelson reported for work and later made claim for the salary which was not paid to him during the time he was under suspension and his case was in the Courts.

The Township Code under which Turkelson was suspended provides that in the event a suspended or removed policeman shall be reinstated, he 'shall be reinstated with full pay for the period during which he was suspended.' ¹

What does 'full pay' mean? Does it require an education beyond the third grade to answer that question? No matter how one strains and stretches the English language, no matter on what Procrustean bed the English vocabulary is laid for violent elongation or shortening, 'full pay' cannot mean anything less than whole, entire, complete pay. Pour the words through a colander, place them in an alembic, study them under a microscope, reproduce them in capitals, italics or the minutest type, they will always come out the same--full pay.

Lord Macaulay, the great British essayist, said that 'the first law of writing, that law to which all other laws are subordinate, is this, that the words employed shall be such as convey to the reader the meaning of the writer.' What did the Legislature of Pennsylvania mean when it said 'full pay'? Did it mean half pay, one-third pay, part pay, or did it mean full pay. The Majority says that it meant full pay less whatever amounts the police officer may have earned while suspended. But if the Legislature meant to convey that meaning, why would it not have said 'full pay less whatever amounts the police officer may have earned while suspended'?

The Legislature, busy as it is, and concerned, as it must be, with the multitudinous problems confronting the Commonwealth, is not so parsimonious with its time and so distraught over its responsibilities that it would omit a phrase highly essential to an understanding of its intention, when that phrase was available at the time of the...