McCandless Tp. v. Wylie

• Decision Date: 17 November 1953
• Citation: 375 Pa. 378,100 A.2d 590
• Parties: McCANDLESS TP. v. WYLIE et al. Appeal of WYLIE et al.
• Court: Pennsylvania Supreme Court

Page 590

100 A.2d 590

375 Pa. 378

McCANDLESS TP. v. WYLIE et al. Appeal of WYLIE et al.

Supreme Court of Pennsylvania.

Nov. 17, 1953.

Robert Van der Voort, John F. Healy, Van der Voort, Royston, Robb & Leonard, Pittsburgh, for appellants.

Frederic G. Weir, Pittsburgh, for Western Pennsylvania Chiefs' of Police Ass'n.

Thomas P. Geer, McMonigle, Geer & Moore, Pittsburgh, for appellee.

Before STERN, C. J., and STEARNE, JONES, BELL, CHIDSEY, MUSMANNO, ARNOLD, JJ.

CHIDSEY, Justice.

Harry E. Wylie and John M. Geisler, two of the defendants in a declaratory judgment proceeding instituted by the first class Township of McCandless, appeal from the order of the lower court sitting en banc, the majority of whom sustained the action of the Township Commissioners in discharging appellants as police officers. Following the filing of an answer to the Township's petition, the parties entered into a stipulation of agreed facts which constituted the record before the lower court. The Western Pennsylvania Chiefs of Police Association was granted leave by the lower court to intervene on behalf of Wylie and Geisler.

On November 4, 1952 McCandless Township was a second class township. On that date an election was held in which the voters voted to change the Township from a second to a first class township. On November 25, 1952 the County Commissioners of Allegheny County certified to such election result. At the time of the election, McCandless Township had in its employ the appellants Wylie and Geisler, one Roy Yingling and one William Blakely, all of whom had become permanent full-time police on October 10, 1952. It also had in its employ one Frank F. Raupp who had been a policeman for more than 17 years, but was temporarily released from the police force because of illness. On December 24, 1952 the court of common pleas appointed five commissioners for the new first class township who, after taking oath as such on January 5, 1953, on the same day appointed a Civil Service Commission of three members under the provisions of the 1949 First Class Township Code, 53 P.S. § 19091-101 et seq. Although this Commission prepared rules and regulations, they had not been approved by the McCandless Township Commissioners at the time of the hearing in the lower court. On the same day, January 5, 1953, the new Township Commissioners appointed three temporary policemen, namely, the above named William Blakely and Roy Yingling as patrolmen (thus continuing their former employment) and Maurice J. McCann as chief of police; they also instructed the Secretary of the Township to advise appellants Wylie and Geisler by letter that they were relieved of their duties. On April 8, 1953 the Township Commissioners were officially notified that appellants Wylie and Geisler protested termination of their employment and demanded reinstatement.

Under the pleadings, two questions are presented: (1) Do the employment rights conferred by the Police Tenure Act of June 15, 1951, 53 P.S. § 352.1 et seq., upon police officers of a second class township survive when the township becomes one of the first class? (2) If the first question is answered in the affirmative, then are the police officers obliged to acquire civil service status under the First Class Township Code of 1949 which repealed the Police Civil Service Act of 1941, 53 P.S. § 351.1 et seq., so far as it related to townships of the first class, but reenacted its civil service provisions?

A question preliminarily arises whether this is a proper case for declaratory judgment. If only the first stated question were involved, a proceeding by appellants in mandamus against the Township Commissioners for reinstatement would have been not only an adequate but the proper remedy. However, the two questions involved are interrelated, and appellants' contention embraces both in that it is claimed by them that under the Police Tenure Act they are entitled unconditionally to continue in their employment. The appellee Township not only contends that appellants have no employment rights but that even if they do, they must nevertheless in due course acquire civil service status under the civil service provisions of the Township Code. We have held that a declaratory judgment will not be rendered to decide future rights in anticipation of an event which may never happen and that a petition for declaratory judgment is properly dismissed where the proceeding may prove to be merely academic. Eureka Casualty Co. v. Henderson, 371 Pa. 587, 92 A.2d 551. Here if it is determined that the employment rights of appellants did not survive the change in classification of the Township, the whole controversy is settled. But, on the other hand, if it is determined that appellants' rights do survive, the controversy will continue to exist with respect to the necessity of their acquiring civil service status. It is evident that a determination only that the appellants are entitled to be reinstated will not settle the entire existing controversy, and immediate further litigation is inevitable. Under the circumstances, and especially since this case is one of public interest and state-wide importance, we will entertain and fully dispose of the proceeding.

Prior to 1941, police employed by boroughs, incorporated towns and townships had no civil service or job tenure rights and were subject to removal, without cause, at the pleasure of the authority that appointed them. The Police Civil Service Act of 1941, June 5, P.L. 84, 53 P.S. § 351.1 et seq., changed this situation with regard to boroughs, incorporated towns and townships of the first class, employing three or more police. Police employed by such municipalities were granted job tenure rights which prohibited their dismissal except for causes stated in the sttute, after public hearing and with right of appeal to the courts. The First Class Township Code of May 27, 1949, P.L. 1955, 53 P.S. § 19092-101 et seq., which extensively reenacted, amended and added to the First Class Township Law of 1931, repealed the Police Civil Service Act so far as it related to townships of the first class but substantially reenacted its civil service provisions. Legislation to this point only partially endorsed and granted police tenure. In boroughs, incorporated towns and townships of the first class, job tenure was limited to police forces of three or more members and in townships of the second class no job tenure was provided, whatever might be the size of the police force. Evidently to remedy an obviously inequitable situation, the Legislature in 1951 passed the Police Tenure Act, Act of June 15, 1951, P.L. 586, 53 P.S. § 352.1 et seq., which extended tenure to police force of less than three members in boroughs, incorporated towns and townships of the first class and to all police forces of townships of the second class, regardless of the number employed. This was an expression of public policy to grant job tenure to all police employed by such municipalities regardless of their political classification. The desirability of granting employment security has long been recognized as mutually beneficial to enployer and employe.

The appellee township argues that the Police Tenure Act is clearly limited in its application to townships of the first class having a police force of less than three members, and here we have a township which contemplates and has appointed three police, thereby making the civil service provisions of the 1949 First Class Township Code applicable; that when McCandless became a first class township there was a governmental change, a new entity was created and the new commissioners could start 'from scratch'; they could ignore all policemen employed by its municipal predecessor and appoint a new police force of three or more members.

In Simpson v. South Mahoning Township School Board, 365 Pa. 567, 76 A.2d

385, this Court held that upon the consolidation of two school districts into a joint school, the teachers (professional employes) had the right to continued employment, and that the joint board was required to continue to employ teachers in accordance with their seniority unless it was necessary to reduce the staff of teachers, under the provisions in the Teachers' Tenure Act for the reduction of the number of teachers. In thus reversing the lower court which held that the joint school became a legal entity separate and distinct from its component boards and as such could engage an entirely new teaching staff, Mr. Justice (now Chief Justice) Horace Stern, speaking for an unanimous Court, said 365 Pa. at page 570, 76 A.2d at page 386: '* * * Since a consolidation of schools is not stated to be one of the valid causes for the termination of a teacher's contract, and since it is only if such consolidation makes it unnecessary to retain the full staff of professional employes that a teacher may be suspended, and then only, under a further provision of section 1205(b), on the basis of efficiency rank determined by a certain method of rating, it is clear that the decision in Walker's Appeal [332 Pa. 488, 2 A.2d 770], has been superseded and invalidated by this legislation, the express provisions of which clearly control the present controversy. * * *' In the case now before us the Police Tenure Act similarly provides for the removal or suspension of police officers, 53 P.S. § 352.2, for certain reasons, including reduction in number, § 352.3...