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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.
Submitted on Briefs March 5, 1992.
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,1 the Borough of Norristown, police officer intervenors O'Neill, Ricci, Richet, Charles, Green and Parente (intervenors), and the Norristown Civil Service Commission appeal an April 25, 1991 order of the Court of Common Pleas of Montgomery County. 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 | [
148 Pa. Commonwealth Ct. 289
] |
standing. The trial court dismissed the preliminary objections. 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,2 to post vacancies for the rank of lieutenant and sergeant and to conduct tests for the positions in accordance with the civil service rules and regulations. The trial court also entered an injunction directing that all future borough appointments and promotions comply with the civil service rules and regulations. No appeal was taken from this February 13, 1991 order. 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.
1. The appeal of Rodney O'Neill, Alfred Ricci, Jean Richet, Bruce Charles, David Green and Ralph Parente is docketed at 1205 C.D.1991; the Norristown Civil Service Commission Appeal is at 1220 C.D.1991; and the appeal of the Borough of Norristown, William DeAngelis, Mayor, and William Bambi, Chief of Police is at 1229 C.D.1991. 2. The trial court's direction to the civil service commission occurred before that entity's being a party to the proceeding. Later, on May 24, 1991, the civil service commission filed a Petition to Intervene, which was granted by the trial court. 3. The appeals were consolidated by order of this court dated August 6, 1991. 4. Act of February 1, 1966, P.L. (1965) 1656, as amended, §§ 1171-1195, 53 P.S. §§ 45101-48501. 5. Section 1184(a) provides:
(a) (E)very original position of employment in the police force ... except that of chief of police ... shall be filled only in the following manner: the council shall notify the commission of any vacancy which is to be filled and shall request the certification of a list of eligibles. The commission shall certify for each existing vacancy from the eligible list, the names of three persons thereon, or a lesser number where three are not available, who have received the highest average. The council shall thereupon, with sole reference to the merits and fitness of the candidates, make an appointment from the three names certified.... As each subsequent vacancy occurs in the same or another position precisely the same procedure shall be followed. 6. Section 1188 provides:
Promotions shall be based on merit to be ascertained by examinations to be prescribed by the commission. (Civil Service) ... 7. The Borough of Norristown became a home rule municipality by adoption of a home rule charter on January 6, 1986. 8. This court has previously determined that a home rule city may not avoid the civil service statute with regard to new firemen positions. See Fire Fighters Local Union No. 1 v. Civil Service Commission of City of Pittsburgh,118 Pa.Commw. 498, 545 A.2d 487 (1988), aff'd per curiam,524 Pa. 278, 571 A.2d 377 (1990). 9. It is undisputed that the civil service regulations were enacted prior to the borough's adoption of its home rule charter.
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