NORRISTOWN FOP, LODGE 31 v. DeANGELIS
148 Pa.Commw. 285 (1992)
611 A.2d 322
NORRISTOWN FRATERNAL ORDER OF POLICE, LODGE 31, by Dennis RODEN, Trustee Ad Litem v. William DeANGELIS, Mayor, Borough of Norristown and Borough of Norristown and Rodney O'Neill, Alfred Ricci, Jean Richet, Bruce Charles, David Green and Ralph Parente, Appeal of Rodney O'Neill, Alfred Ricci, Jean Richet, Bruce Charles, David Green and Ralph Parente, Appellants. NORRISTOWN FRATERNAL ORDER OF POLICE, LODGE 31, by Dennis RODEN, Trustee Ad Litem v. William DeANGELIS, Mayor and William Bambi, Chief of Police and Borough of Norristown and Rodney O'Neill, Alfred Ricci, Jean Richet, Bruce Charles, David Green and Ralph Parente and Norristown Civil Service Commission, Appeal of Norristown Civil Service Commission, Appellant. William DeANGELIS, Mayor; William Bambi, Chief of Police; and Borough of Norristown, Appellants, v. NORRISTOWN FRATERNAL ORDER OF POLICE, LODGE 31, by Dennis RODEN, Trustee Ad Litem, Appellee.
Commonwealth Court of Pennsylvania.
Decided June 1, 1992.
Emeline L.K. Diener, for appellant Norristown Civil Service Com'n.
J. David Farrell, for appellee Norristown Fraternal Order of Police, Lodge 31.
John A. DiCicco, for appellees William DeAngelis, William Bambi and Borough of Norristown.
Richard M. Dunlevy, for appellees Rodney O'Neill, Alfred Ricci, Jean Richet, Bruce Charles, David Green and Ralph Parente.
Before CRAIG, President Judge, McGINLEY, J. (P.), and KELLEY, J.
CRAIG, President Judge.
In this consolidated appeal,
This case presents the question of whether a home rule municipality remains governed by state law with respect to police appointments and promotions.
The confusing procedural history of this case is as follows. On July 20, 1990, the mayor and the chief of police "appointed" intervenors to police positions of a higher rank. Two individuals were "appointed" to the rank of lieutenant and four individuals were "appointed" to the rank of sergeant. Approximately three months later, on October 12, 1990, Lodge 31, Norristown Fraternal Order of Police (FOP) filed in the trial court a complaint entitled "Appeal Under Local Agency Law" which challenged the "appointments" made within the police department.
The borough filed a motion to quash the complaint on the basis of lack of jurisdiction which was dismissed by the trial court on December 11, 1990. The borough then filed preliminary objections alleging in part that the complaint did not properly seek equitable relief, there was no adjudication from which an appeal could be taken, and that the FOP lacked
Thereafter, the trial court held a preliminary injunction hearing on January 25, 1991. After the hearing, the trial court entered the first of four orders involved in this appeal. On February 13, 1991, the trial court entered an order which rescinded the July 1990 police department appointments and directed the civil service commission, not then a party to the action,
On March 1, 1991, the trial court granted the Petition to Intervene filed by the police officers appointed to a higher rank, the intervenors. The borough then filed a petition for reconsideration, an amended petition for reconsideration and a petition to supplement the record to the February 13, 1991 order. On March 4, 1991, the trial court entered its second order, which denied and dismissed the borough's petitions but modified the February 13, 1991 order by declaring the promotions null and void, and by directing that the civil service commission consider the promotions by reference to the rules and regulations in effect at the time of consideration, that is, either the rules currently in effect or new rules which would be presented to the borough council the following day, March 5, 1991.
On March 15, 1991, new civil service rules and regulations were approved by resolution of the Norristown Borough Council. Thereafter, on March 11, 1991, the FOP filed a petition for reconsideration of the March 4, 1991 order of the trial court on the basis that the newly promulgated rules and
Three days later, on April 25, 1991, the trial court issued its fourth and final order which rescinded the March 4, 1991 order and ordered that the civil service commission be directed by the already established rules in existence at the time of the appointments in July of 1990 because the newly created March 5, 1991 rules and regulations were null and void for failure to be advertised, failure to provide for a minimum passing grade, and for expansion of the civil service commission from three to five members. The borough, intervenors and the civil service commission have now appealed to this court.
At issue is the propriety of the borough's appointment of the above-mentioned police officers to a higher rank in the police department without regard to civil service requirements. The civil service sections of the Borough Code (Code),
The statutory sections which provide that every position in a borough police department must be filled in a certain manner are mandatory requirements when a police officer is to be appointed or promoted. Manning v. Civil Service Commission of Borough of Millbourne,
The borough maintains, however, that its status as a home rule charter municipality
In analyzing the borough's exercise of power as a home rule municipality, we begin with the presumption that the exercise is valid if no restriction is found in the Constitution,
Those legislative boundaries are found within the provisions of section 301, 53 P.S. § 1-301, of the Law and empower a municipality to exercise any powers and perform any functions "not denied by the Constitution of Pennsylvania, by its home rule charter or by the General Assembly at any time." Thus, the legislature did not intend to permit a home rule charter municipality to supersede state legislation.
Further, limitations on municipal powers are found in section 302, 53 P.S. § 1-302. This section provides:
By enactment of section 302, the legislature established an area in which its statutes would continue to control in all municipalities in the Commonwealth. Thus, through passage of the Law, the legislature did not intend to jeopardize existing statutory protections regulating police officer appointments. See Fire Fighters Local Union No. 1 v. Civil Service Commission of City of Pittsburgh,
Having determined that the civil service provisions of the Code apply to the borough's appointment and promotion of police officers and having previously noted the required involvement of the civil service commission, we point out, procedurally, that the FOP, by filing an appeal directly to the trial
Under the doctrine of exhaustion of administrative remedies, a party is required to exhaust all available administrative remedies before a right to judicial review arises. St. Clair v. Pennsylvania Board of Probation and Parole,
As the Supreme Court has indicated:
Because the FOP failed to exhaust administrative remedies, we and the trial court are foreclosed from review. Id.; St. Clair. See also Shenango Valley Osteopathic Hospital v. Department of Health,
As indicated above, the borough failed to comply with civil service commission regulations and the FOP made no attempt to invoke agency procedures to correct the problem. It is the civil service commission which should consider whether the police officer "appointments" made by the borough are positions which are actually permanent "promotions" in disguise. Because the civil service commission has developed an expertise
Hence, we vacate the April 25, 1991 order of the trial court and remand this case to the trial court with a direction that such court remand the matter to the civil service commission for adjudication.
AND NOW, this 1st day of June, 1992, the order of the Court of Common Pleas of Montgomery County dated April 25, 1991 is vacated, and this matter is remanded with a direction to remand the matter to the Norristown Civil Service Commission for adjudication.
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