*1
Carolyn Appellant Pennsylvania. Supreme Court 18, 1977. Argued Nov. 30, 1977.
Decided Nov. Morton, Chester, for at No. 80 appellant West Richard C. 752. at No. appellee III, appellant Asst. Dist. Gawthrop, Atty., Robert S. No. 752 and at No. 80. appellee EAGEN, J., O’BRIEN, ROBERTS, POM-
Before C. EROY, NIX, PACKEL, JJ. MANDERINO
OPINION PER CURIAM.
Order affirmed. A.2d 1328
CITY OF YORK REIHART, Attorney District of York Donald L. Pennsylvania, Police. and Fraternal Order of Pennsylvania.
Supreme Court Argued May
Decided Dec. *3 Reihart, Atty., pro
Donald L. Dist. se. White Fitzkee, York, for Rose Jr., Harold N. appellee, Lodge. of York. York, City
John for Jr., appellee, W. Thompson, ROBERTS, EAGEN, O’BRIEN, POM- J., Before C. and EROY, MANDERINO, JJ. NIX and
OPINION NIX, Justice. the contract between
As a of an employment result to officers, pursuant consummated of York its police would its arbitration, city pay it was the binding agreed day portion for each officers the sum of $15.00 their or hearings during thereof in court spent appearances This to be addition hours. sum was received off-duty witness statutory fixed regular salary officers’ fee available to citizen who is called upon appear witness in this Commonwealth.1 This term of the bargain- ing agreement was subsequently implemented by city with the passage following ordinance:
“Each policeman will receive for each day por- $15.00 tion thereof spent appearance Court or hearings during off-duty time.”2
In 1974, the District February, for York Attorney the instant appellant, notified officials he believed this provision illegal to be and that he intended take measures, appropriate including of possibility criminal prosecutions and requests relief, for injunctive effort to prevent these expenditures monies.
aAs consequence these expressions of intention of the District York Attorney, City of filed petition declaratory judgment in the Court of Common Pleas ascertain the legality of ordinance. The challenged Police, Fraternal Order Rose Lodge White labor representative of the policemen affected the agreement, 21, 1941, July 416.2, Act of 28 P.S. amended (Supp.1977-78); Williams, Templeton (1909). Pa.Super. also, 256, 1; See (Supp.1977- 28 P.S. 412 78) mileage appearances which authorizes attendance fees and before a Justice of the Peace. opinion Shadle, As noted in the P. J.: year 1,105 For the appearances calendar 1974 there were such justices, court, appearances before district 691 such before this appearances, 2,400 604 other appear- miscellaneous or a total of ances, for which was at the rate of each $36,000.00. officers, in the total amount of Of 109 *4 appearances, them appear. made such 23 while did not Of those appeared paid, who largest and were thus amount received $1,440.00 appearances. one officer was for 96 period 1, 15, January 1975, For the from there were 1975 appearances justices, 708 such appear- before district 496 such court, ances before appearances, this and 328 other miscellaneous 1,532 appearances, or a total compensation for which was $22,980.00. at the rate each the total amount of Of officers, police 107 87 appearances, of them made such while 20 appear. did largest appearances. appeared paid, not Of those who and were thus by any $1,020.00 amount received one officer was for 68
155 concluded The lower court was to intervene.3 permitted 23, 1931, June Code, Act of City that the Third Class re- (hereinafter 37008 amended, 53 P.S. 932, 2008, as § policy and the 37008) general as ferred to Section stat- municipal in various as reflected this Commonwealth promise. of the contractual enforcement disallowed the utes reversed Court, Blatt, dissenting, J. The Commonwealth se “per was not that the provision on the ground lower court contemplated nor were the violative” Section of the general within the prohibition “fees” payments diem relationship” a “rational since had law municipal there- on off-time. This Court for police duty Because we believe after allocatur. granted is in direct contraven- such authorizing payments the legis- unambiguous language express tion Commonwealth municipalities lature all this forbidding their afforded from “fees” in the including order of the Commonwealth officers, we reverse the the trial court. the order of Court reinstate that the compensation has legislature to their townships provide which municipalities shall be fixed “shall hereafter be an amount as such officers law, but under no circumstances shall such fines, fines, or rebate of be determined or include 636 N. fees.” P.S. Aug. 636). to as (hereinafter referred Section (Supp.1977-78) also consider a Third we must City Since York is Class Code4 in addition City the Third Class Section law. municipal Section general Section 6365 in pertinent provides part: inaccurately designated caption pleas
3. The in the court of common repre- party plaintiff which rather than a the F.O.P. defendant capacity sents its true this lawsuit. amended, XX, June art. (Supp.1977-78). general expressly Section 636 of found that 5. The lower court City applicable of York because municipal to the law was not general “superseded provisions of the Third Class *5 policeman No ask, shall demand or receive any compen- sation or reward whatsoever for his services other than ordinance, rewards offered for except the arrest of persons accused of crime committed outside of office, the city which hold fees witness mileage as provided by law their appearance court of record.
The instant on appellant relies to challenge Section 636 the questioned us payment, urging acknowledge the clear legislative intent to abolish remnants of the fee from system the performance of law enforcement duties. con- Appellant tends that the issue actually constitutes a “fee” for every arrest police officer makes since he then is obliged aas witness on appear behalf of the Common- wealth. This intertwining of the important exercise of police discretion with the of financial he possibility gain, asserts, must not be tolerated. The on the appellees, other hand argue that the diem not “fee” within the proscription the statute but is basically for the performance duties beyond normal working hours. believe that the Alternatively, appellees compensa- tion is authorized by Section 37008 of the Third Class City Code.
Our rules of statutory provide construction when statutes or parts same statutes relate the persons or things or to the same class persons things they in pari materia and should be possi “construed if together, ble, as one statute.” November No. added 1972, Dec. 6, 290, 3, 1 P.S. municipal legislation.” theory specific The Court’s controls general change result, however, did not the court found since specific provision Code, City in the Third Class which he believed prohibited questioned payments. ofAct June amended, (Supp. 1977-78). 52 P.S. court was incorrect in inapplicable its assessment that Section 636 was to the City York; applies municipalities statute to all in this Com- express monwealth both its terms and of the act which title is; regulate “An act to of all members of employed by force municipality township.” (emphasis added). both Section Since 1932 (Supp.1977-78). munici- general and Section Class Third *6 officers afforded the compensation relate to law pal read them to obliged we are and materia are in pari they believe Section We statute, if possible. as one together noncon- consistent entirely 636 are 37008 Section policy legislative reflect identical and that tradictory of remuneration kinds to what regard with determinations Therefore, arguments receive.6 may officers be viewed us must have presented parties which in question. statutes reconcilability terms 636 and of Section the prohibitions we note that Initially, 636 is ad- Section parties. to different are directed 37008 from expending them and prohibits municipalities dressed officers. Section of police on behalf in certain ways monies of police what hand, types relates to 37008, on the other by provided than remuneration, compensation other persons’ the em- other than from sources ordinance, are authorized conclude, as the trial Thus we cannot ployer-municipality. 636 section a conflict between that there is did implicitly, fines, re- excludes merely 636 and section 37008. Section compensation in the as determinants fines, or fees bates incorporat- read as be fairly 37008can fixed law. Section by compensation persons’ as to any police this exclusion ing There- third class. of cities of the ordinances established by the police require fore, together the two sections taken in- must not set such ordinances by persons’ is unquestioned It fines, or fees.6A fines, rebates of clude not, conclude, expressly do we if were to which 6. Even we irreconcilable, obliged our rules under be we would two statutes 636, having been statutory Section to conclude that construction time, would Assembly passed by later date at a the General 230, 25, 707, 1970, No. P.L. the situation. Act of November control 290, 3, 6, 1339, 1936 1972, 1 Pa.S.C.A. added December (Supp.1977-78). mileage as fees and exception in 37008 as to “witness 6A. The section Assembly’s desire merely the General law” reflects statutory provisions many harmony keep with the section 37008 in 256, See, g., relating payments. Act of e. to such fees); (1958) (witness of October 412 28 158 in this proposed payment case is to be out paid Unless city treasury York. the remuneration is fine, fixed by ordinance not a rebate of a fee, is, therefore,
fine or a it forbidden be municipality.
Although “fee” has never been juris defined this diction in the context of Court Section this has on a prior occasion a “fee” distinguished from fixed salary. fee is “a Generally rendered, for service service.” especially professional County Auditors of McKe 3 A.2d Pa.Super. (1938). See also, Aiken Mills v. States, United F.Supp. (E.D. In S.C.1944). McNair v. 3, 195 328 Pa. Allegheny County, A. (1937) this Court faced the of whether question Mayor Pittsburgh, who law was to receive a fixed *7 in of the salary lieu fees he formerly received hearing certain prosecutions, was entitled to receive his de salary spite the fact that he had performed no services. The Court the explained that replacement the system” “fee with a fixed annual compensation was attempt prevent fur ther abuse of that We system. held that the was Mayor entitled to this in the salary, absence of a forfeiture or office, nonfeasance in regardless of he performed whether any particular services.
It is said to be in the nature of fees, because it was
intended
replace
the fees formerly collected
for these
mayor
part
services as
of the county’s
expense
administering
criminal law of the
In
ex
State.
State
436, 1,
(Supp. 1977-78) (witness fees);
28 P.S.
§
416.2
§
Act
19, 1887,
May
134, 1,
(1958) (mileage);
28 P.S. 413
§
§
21, 1959,
December
(Supp. 1977-78)
28 P.S.
416.4
(mileage);
14, 1804,
January
Act of
(1966)
P.S. 1019
(witness fees). Although
respective
it is
counties who make
payments,
authority
payments
these
for such
is found in state
statutes, not local ordinances.
7. We note
agreement
that fundamental hornbook law is in
with the
mandates of Section
636 that a
officer’s
is to be
set
salary
against
law in the form
of a fixed
with restrictions
recompense.
Municipal Corpora-
additional kinds of
See 62 C.J.S.
586, p.
tions
said
Barnes,
it was
v.
Fla.
3 So.
rel. Murphy
rests upon
between
and salaries
the distinction
fees
services
particular
the distinction between
payment
services
for continuous
and fixed
performed,
v. Lincoln
period
over a
of time. See also Landis
31 Or.
substitute from the was taken minable Jurisdiction yearly expense. compensa- His on the mayor. and conferred magistrates with quarter- was in terms of an annual salary, tion stated do with away was to the intent ly Obviously, payments. at Id. 328 Pa. than it. perpetuate the fee rather system, 9-10, A. with this basic has agreed
The Arizona Court Supreme fee, is a retainer lawyer’s formula and held that of Arizona policy derogation public of which is officials. public annual salaries fixing declara explicit art. 22. This is an We consider next § its of Arizona. By of the state public tion of the policy definite be fixed and terms all officers are to fees of salaries, no receive may and under circumstances between “salaries” is the difference nature. What provision? constitutional and “fees” as referred of these two meaning We have had the question Wilcox, County in the case of Cochise words before us that, we concluded 758. Therein 14 Ariz. 127 P. *8 are as follows: Salaries substance, difference was and services for definite based on fixed compensations and fixed regular and at paid of time regular periods for serv particular are compensation while fees intervals See, periods. and uncertain irregular at ices rendered 449, 42 Colo. Trowbridge, also, Board of Commissioners 530; 424, 31 50 P. 554; Or. v. Lincoln 95 P. Landis Co., 113 Md. 77 A. Trust & Dep. v. Mercantile Blick River v. Frohmil rel. Commission 844. State ex Colorado (1935). 52 P.2d ler, 46 Ariz.
Under the above it formulations is apparent a employment question provides contract for “fee” since irregular diem is be and uncertain periods police a officer in court (everytime “appears” on for hours) particular a service rendered off-duty (an appear- ance) that the for demand the service is fluctuating (whenever indeterminable the police person is subpoenaed). Appellees fee, contend that the is not but is payment overtime merely the many off-duty hours in court.8 We that the spent disagree recompense merely is for overtime work it is since not related to the number of hours or actually amount of time engaged performing that function. To the contrary the payments earned on a flat per diem basis regardless of what portion day is actually in court. This spent method of payment more closely resembles the customary witness fee since it not does upon whether the witness depend actually only testifies but his upon “appearance”. Co., Walker v. Pa. See R.R. 80, 29 Pa.Super. A.2d 358 (1943); 416.2, as amended (Supp.1977-78). Appellees argue alternative that the payment is authorized specifically by Section the Third Class and that the statute has been with in complied two First, that respects: this “compensation” has been duly “provided by ordinance” since the bargaining collective agreement from which the labor contract was emerged actually passed city ordinance. assert Secondly, they is in anticipated payment “witness fee” reality in a court of appearance record which has been “provided law” in the form of a city ordinance. Initially we note that the assertion that the compensation has been provided is, therefore, fortiori is legitimate defeated our conclusion it “fee” which the is forbidden under municipality provide Section to its Thus, officers. although 37008 might permit Section such a be received aby police officer, Section 8. Under the facts of this we case need not decide whether officers would be entitled to overtime for witness appearances.
161 636 from being the source of that prohibits we believe the Section Secondly, language municipality. “as refers to 37008 witness fees law” permitting by law does not to ordi legislatively-enacted apply Williams, 39 v. Templeton Cf. Pa. regulations. nances and 38, Witnesses 425-26. Super. (1909); pp. C.J.S. § Kuntz, 52 v. Compare, Pressgrove (N.D.Miss. F.R.D. 230 1971). The the statute us to this very language of leads conclusion it the author since differentiates between clearly ity granted “law” of statewide by city by application.
This holding comports with the legislative policy running through municipal several statutes in this Com analogous monwealth which seek to remove the of addi expectation tional remuneration from enforce law performance ment duties.9 We believe court appearance witness is an so related to activity closely inextricably City provides 9. The First Class Code follows: Townships employing policemen policemen pay shall to all such stipulated salary. any a fixed or It shall not be lawful for such policemen any compensation, charge accept or fee or other salary, any performed addition to his for rendered or service any pertaining him of kind or his office nature whatsoever or policeman, expenses except public duties as a rewards and the 24, 1206, discharge 1931, incurred in the duties. P.L. his June XIV, 1408; 1949, 1955, May art. 30. 53 § 1977-78) (Supp. (Footnote omitted). Turkelson, Township See also Lower Merion 396 Pa. 152A.2d (1959). parallel provision in the Second Class reads: any township policeman charge It shall not be lawful for or any accept salary paid or other fee addition to the policeman any to him as him the performed service rendered or duties, pertaining except public to his office or rewards and legal mileage traveling expenses. allowed to constables for 594; May V, art. (Supp. 1977-78) 53 P.S. 65594 statute, general municipal although repealed Another in toto as Cities, applied thought. to Third Class shares same municipalities passage From and after the of this or act all corporations, employing policemen within the commonwealth Pennsylvania, salary; pay policemen stipulated shall to all such a fixed any and that hereafter it shall not be lawful for such policeman charge compensation, accept fee or other salary, performed addition to his service rendered or as to duties, interrogation, such as arrest and actual *10 in the form of a compensation extra from require insulation expect It reasonable to fee its is performance. be trans might easily as a witness for appearing payment a arrest the officer or a for each formed into a By be noted as witness. to which he can makes colleague to according to materially profit officer a permitting police effectuates, effectuating, or in he aids the number of arrests his and judgment that discretion increases the possibility should not and which this Court point will be altered to has unre legislature and to which the will not condone that Even likelihood opposition.10 slight voiced its servedly to be a desire might profit official tainted judgment to our of criminal monetarily repugnant system would be to, is fee unrelated It is justice. unpersuasive of, to in what the officer testifies actually independent not, to to arrest or court. It is sufficient that the decision instance, be influenced not, might directly or interrogate to our gain. concept of financial by temptations danger too democracy of to our of principles law enforcement and real to ignore possibility. off- police spend many
We officers often recognize conjunction performance in court in with the hours duty any pertaining or to his office him kind or nature whatsoever legal mileage except policeman, public rewards and duties 1897, July 14, traveling expenses. allowed for 1977-78) (Supp. P.S. Code, only applicable A section not Third Class principle. city general identical officers but to officers in follows the number, duties, ordinance, prescribe, by Council shall city. pay employes No officers and treasury, ment of be such shall made from authorized, except any way any or person be an officer or employe pursuance appointed law. No elected or officer, any passed giving be shall servant, extra authority contractor, employee previous of law. or without warrant, passing Any drawing or countersigning or officer or section, guilty paying any misdemeanor, contrary shall be voucher to this office, thereof, and, his upon forfeit conviction shall dollars, exceeding pay thousand and be not five sentenced fine both, undergo exceeding year, at the imprisonment or to one not IX, 902; art. discretion of the court. June 1977-78). (Supp. June duties and we are with sympathetic the possibility that this service None- might go uncompensated.10 theless, arewe constrained to reaffirm the strong policy this Commonwealth against fee perpetuating reviving system and all its We believe it is dangers. overriding our responsibility to effectuate the legislative determination that the exercise police discretion should be isolated from financial remuneration and air to avoid even the of impro- in the priety law-enforcement area.
Order of the Commonwealth Court reversed and judgment of the Court County of Common Pleas of York reinstated. J.,
MANDERINO, filed a dissenting opinion.
MANDERINO, Justice, dissenting.
The issue with we only which are concerned in this appeal is whether this diem offends the substantive per payment law of the Commonwealth. The applicable statutory provi- sions cited by the 636 of munici- majority general the § pal law (53 636) P.S. 37008 of the Third Class City § (53 I 37008). can find no basis to conclude that this is unlawful either provision. under
Section 636 that provides police officers shall not fines, fine, include rebate of or The “any fee.” has held the word “fee” as used in majority that 636 is which the “unambiguous” language encompasses compénsa- possible strenuously pointed appellant Another evil the is possibility unnecessary police being subpoenaed. the of witnesses Attorney ultimately upon While it is true that the District decides the case, given logistical witnesses to be called in a it is fact generally suggested by police all of the witnesses the officials are subpoenaed appear appropriate proceeding. only at the Not listing practice calling unnecessary would the witnesses cre monies, ate an inexcusable drain it on also would diminish the by unjustifiably removing effectiveness the force officers primary responsibility ferreting from their preventing out and recognize payment question only crime. While we the in is appearance off-duty hours, made if the court occurs on the time of appearance anticipated Therefore, cannot be in advance. this “padding” syndrome significant impact by diverting would have a performing normally assigned officers who otherwise would be duties. diem, they in issue. This payment tion here and uncertain is “fee” because it is at paid irregular say, policeman’s ap- for a service rendered —a particular periods in court. pearance is reasoning.
I with this The disagree must during for thereof . . . “day portion to be paid policeman give up spend hours” which must off-duty is for the overtime which necessitat- in court. It is payment his not for responsibilities employment, ed the service of rendered. special Payment services the number of be based logically upon would appearance testified, here, not, officer based cases in which the which have been days the number of off upon squarely That it is at official duties. paid irregular consumed no it a fee. justification calling uncertain is periods forms, takes all overtime overtime Although many in are paid have one characteristic payments common— intervals, whenever overtime is earned. irregular actually I must therefore conclude that this is not a “fee” within the but overtime for the time prohibitions put on functions. required police is of the Third Class Code there
Although may the number of hours that upon limitation no remain on there is duty, officer to require any prohibiting pay- in this section elsewhere provision reference to over- legislative ment of overtime. only that when duty beyond time provision *12 situations, is in overtime emergency limit is required hour regular at the rate as for service. to be same compensation prohibited by Nor it be that this is can said This section expressly 37008 of Third Class Code. “other than that prohibits ” . . These made payments, pursuant . ordinance, enacted lawful under this duly clearly provi- sion. is the unwarranted majority premised on opinion involved in this case payment system
assumption I must makes court desirable after. days sought disagree assumption. with that in court fre- Appearances or, quently very least, consume complete day of a Fifteen is major part day. dollars much less day cases, than the normal of a police officer. In earnings many the need to time spend is not off-duty aspect court which duty is desirable as indicated majority. No has control of policeman whether his arrests are valid, whether he needed court. The district attorney’s office has matter, control over complete this and there is no concluding basis officers make generally arrests in the will unnecessary hope they earn meager a full when are not giving up usually day scheduled to work. I otherwise dissent.
Argued 4,May Decided Dec.