Scaccia v. Borough of Old Forge

• Decision Date: 13 February 1953
• Citation: 373 Pa. 161,94 A.2d 563
• Parties: SCACCIA v. BOROUGH OF OLD FORGE.
• Court: Pennsylvania Supreme Court

94 A.2d 563

373 Pa. 161

SCACCIA v. BOROUGH OF OLD FORGE.

Supreme Court of Pennsylvania.

February 13, 1953

Action of assumpsit brought by special policeman of Borough, to recover wages. The Court of Common Pleas of Lackawanna County, No. 738 November Term, 1950, Otto P. Robinson, J entered a nonsuit, and plaintiff appealed. The Supreme Court No. 34, January Term, 1953, Bell, J., held that testimony of Burgess that he appointed special policeman because, in his opinion, when ordinance reduced police force from three to two it created an emergency, was insufficient to show an emergency within contemplation of Borough Code provision authorizing appointment of special policemen by Burgess in such instance.

Judgment affirmed.

Joseph A. Mahon and Carl Carey, Scranton, for appellant.

Ernest D. Preate and J. Julius Levy, Scranton, for appellee.

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

BELL Justice.

The Borough of Old Forge had employed the plaintiff and two other policemen for a period of over two years. They had been appointed by the Burgess and were under Civil Service. The Borough Council, convinced that the financial condition of the Borough made economies necessary and that the police force could safely be reduced to two employes without affecting the efficiency of police protection in the Borough, passed an Ordinance in March, 1950, abolishing plaintiff's position as policeman or patrolman. The Ordinance was passed pursuant to and by virtue of the following provision of the Borough Code as amended^[1]: ‘ Borough councils may, subject to the civil service provisions of this act, if they be in effect at the time, appoint and remove, or suspend, or reduce in rank, one or more suitable persons, citizens of the Commonwealth as borough policemen * * *. The burgess may appoint special policemen during an emergency in which the safety and welfare of the borough and the public is endangered.’

The Burgess immediately thereafter declared that an emergency existed in the Borough of Old Forge due to Council's reduction of the police force and appointed plaintiff to serve as a special policeman. Plaintiff thereafter served daily as a policeman and brought an action in assumpsit for wages for a period of 18 months. The lower Court entered a nonsuit because no emergency was proved. From the Order refusing to remove the nonsuit plaintiff appealed to this Court.

The Borough Code as amended clearly vests in the Borough Council, not in the Burgess, the right to appoint, remove, suspend or reduce Borough policemen. The Borough Council, acting in good faith, has therefore the power and authority to reduce the number of police officers in the Borough by abolishing whatever police offices it decides are no longer needed. Carey v. Altoona, 339 Pa. 541, 16 A.2d 1; Simasek v. McAdoo Borough, 352 Pa. 306, 42 A.2d 600; McGuckin v. West Homestead Borough, 360 Pa. 311, 62 A.2d 23. Council possesses this power even though the officer was under Civil Service. Cf. Leary v. Philadelphia, 314 Pa. 458, 172 A. 459; Essinger v. New Castle, 275 Pa. 408, 119 A. 479; Carey v. Altoona, 339 Pa. 541, 16 A.2d 1, supra.

Plaintiff claims that the Burgess had a right to appoint a special policeman during an emergency in which the safety and welfare of the Borough and the public was endangered. We agree with this statement; the only question is whether or not there was an emergency. The Burgess testified: ‘ I appointed Joseph Scaccia a special policemen because in my opinion when...