212 A.3d 1018
Pa.2019Background
- Plaintiffs DeForte and Townsend were part‑time, hourly-paid police officers for the Borough of Worthington; the Borough’s police force had four officers. Plaintiffs were terminated without process and sued under 42 U.S.C. § 1983 claiming a property interest in continued employment under state law.
- District court held plaintiffs were not covered by the Borough Code’s civil‑service protections (because they were part‑time/hourly and/or excluded as “extra police”) and that the Tenure Act did not apply because the Borough had four officers (Tenure Act covers boroughs with fewer than three members). Summary judgment for the Borough followed.
- Third Circuit certified whether (1) the Borough Code and the Police Tenure Act must be read in pari materia so every borough police force falls under one of them, and (2) whether the same officer‑counting test should apply to determine which statute governs.
- Pennsylvania Supreme Court recognized the two statutes are broadly in pari materia with congruent objectives: both supply civil‑service removal protections so officers are dismissed only for valid reasons; the Borough Code covers forces of three or more, the Tenure Act covers forces of fewer than three.
- The Court held the same membership test should be applied to both statutes: the Borough Code’s definition of “member” — those who “devote their normal working hours to police duty … and who are paid a stated salary or compensation by the borough” — governs counting under the Tenure Act as well.
- The Court clarified that the statutory exclusion for “extra police serving from time to time or on an hourly or daily basis” applies only to extra/special police and does not automatically exclude part‑time officers; hourly pay alone does not disqualify an officer as a member.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Borough Code and Tenure Act must be read in pari materia so every borough police force is governed by one or the other | Statutes should be construed together so every borough force is covered by one statute and provides consistent removal protections | Statute texts differ in scope; Borough Code’s three‑member threshold and Tenure Act’s <3 threshold operate independently | Yes — broadly in pari materia; Legislature intended Tenure Act to fill gap left by Borough Code so borough forces fall under one or the other |
| Whether the same test should be used to count "members" for purposes of deciding which statute applies | Use a uniform test (Borough Code’s definition) so part‑time but regularly engaged officers count as members | Borough argued part‑time/hourly officers and "extra police" are excluded from Borough Code counting | Yes — apply Borough Code’s definition ("normal working hours" + paid compensation) to count members under both statutes |
| Whether "extra police" exclusion prevents counting part‑time hourly officers | Plaintiffs: they were not "extra police"; worked normal hours/devoted normal working time and were available | Borough: hourly/part‑time status and lack of civil‑service hiring means exclusion from protections | The "extra police" exclusion applies only to truly "extra"/special officers; part‑time officers are not categorically excluded; hourly pay is compensation and does not alone exclude membership |
| Whether Plaintiffs therefore were entitled to state-created property interest (procedural protections) | Plaintiffs claimed state law created property interest in continued employment | Borough maintained plaintiffs lacked membership/status to trigger protections | Court did not finally decide on Plaintiffs’ individual entitlement — held only that the statutory counting test applies; factual determination of membership/protections remanded to lower courts |
Key Cases Cited
- Petras v. Union Twp., 409 Pa. 416, 187 A.2d 171 (Pa. 1963) (defines when part‑time officers may be treated as full‑time for tenure purposes by focusing on being "available for full employment")
- George v. Moore, 394 Pa. 419, 147 A.2d 148 (Pa. 1959) (interprets Tenure Act and Borough Code together to preserve tenure protections for small forces)
- Deskins v. Borough of W. Brownsville, 388 Pa. 547, 131 A.2d 101 (Pa. 1957) (discusses Tenure Act’s extension of tenure to small forces as legislative policy)
- Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658 (U.S. 1978) (municipal liability under § 1983 framework)
- Adler v. Montefiore Hosp. Ass'n of W. Pa., 453 Pa. 60, 311 A.2d 634 (Pa. 1973) (state law as source of property interest for due process claims)