87 Pa. Commw. 408 | Pa. Commw. Ct. | 1985
Opinion by
The Borough of Kenuett Square
During the years 1974 through 1981, a series of collective bargaining agreements and arbitration awards
1. Availability of Mandamus
■The borough initially contends that Judge Gawthrop erred by failing to determine, after receiving evidence, whether mandamus was the appropriate procedural vehicle for the case. Before answering the complaint, the borough had filed a preliminary objection in the nature of a demurrer; Judge Stively overruled that objection, concluding that mandamus was available to enforce Act 111 arbitration awards and agreements.
In his order, Judge Gawthrop specifically agreed that mandamus was the proper procedure, noting in a footnote that Judge Stively’s initial determination was the law of ¡the case on the issue. The borough argues that because Judge Gawthrop had heard evidence in the case, the preliminary decision was no longer binding and therefore, he should have, but did not, reconsider the issue.
The cases have clearly established the general rule that “absent some [new] evidence it is improper for a trial judge to overrule an interlocutory order by another judge of the same court in the same case. . . ,”
■■Contrary to the borough’s interpretation, we do not read Judge Gawthrop’s statement as indicating-failure to consider the question. Bather, it reflects his implicit determination that the evidence did not justify overruling the initial order, which therefore became binding.
The borough also continues to argue that mandamus was not available because the officers had an adequate remedy through a civil action (formerly assumpsit).
The extraordinary writ of mandamus may “compel the performance of a ministerial act or mandatory duty only ‘where there is a clear legal right in the plaintiff, a corresponding duty in the defendant, and a want of any other appropriate and adequate remedy.’ ” Township of South Fayette v. Commonwealth, 73 Pa. Commonwealth Ct. 495, 506, 459 A.2d 41, 46 (1983), quoting Valley Forge Racing Association v. State Horse Rocing Commission, 449 Pa. 292, 295, 297 A.2d 823, 825 (1972).
The recent case of Geriot v. Council of the Borough of Darby, 491 Pa. 63, 417 A.2d 1144 (1980), appeal after remand, 73 Pa. Commonwealth Ct. 1, 457 A.2d 202 (1983), firmly established that mandamus is available to enforce clear contractual rights arising from Act 111 collective bargaining- agreements and arbitration awards. We agree with the trial court that with respect to the borough’s duty to purchase life insurance and compensate the officers for overtime, the
With respect to its contention that the officers were not entitled to mandamus because the applicable agreements and awards had expired, thereby negating any clear legal rights .and duties, the borough was unable to supply any direct authority for the proposition that only executory contracts are enforceable through mandamus.
2. The Former Officers
The borough next contends that the court erred in granting relief to former officers Zagorskie and Little because they did not work for the borough when they brought .suit, and therefore, it argues, the borough owed them no clear legal duty. Because these contracts governed the parties ’ employment relationship, that contention is legally the equivalent of the borough’s unsuccessful argument that mandamus is not available to enforce the terms of an executed contract.
We are unpersuaded that a dissatisfied Act 111 employee must remain with an employer in order to seek mandamus to enforce clear contractual rights;
3. Evidentiary Ruling
With respect to Exhibit P-9, containing summaries and computations of overtime due each officer, the borough contends that the trial court erred in admitting the pages titled “Monies Owed” because the officers failed to lay a proper foundation.
That contention must fail, however, because officer McCarthy prepared those pages from borough records which were also in evidence. Furthermore, the court admitted the pages, not as substantive proof of the entitlement ;to overtime, but “just as a summary” of the admitted borough records, referring to them as “nothing more than arithmetic”; therefore, the eases upon which the borough relies, discussing the admissibility of substantive evidence, are inapposite. ■
4. Overtime
The borough also 'argues that the trial court committed legal error by concluding that the officers had established their entitlement to overtime pay. Because we concluded that the trial court did not err in admitting Exhibit P-9, the borough’s first point, premised on its inadmissibility, is unpersuasive.
'Similarly, we reject the argument that the evidence was insufficient to support the award. The borough introduced the testimony of its payroll clerk that, as of December 1981, it did not owe any of the officers for overtime; however, the officers introduced borough records and the testimony of Officer McCarthy to establish their entitlement. Presented with conflict
We are also unpersuaded by the borough’s argument that the court’s award of overtime pay is inconsistent with its conclusion that the borough scheduled overtime correctly. Obviously, the borough may establish overtime schedules which do not violate the applicable contract terms while failing to compensate the officers properly for that extra work.
The borough’is contention that the court failed to provide a ,set-off for weeks when the officers worked less than forty hours ignores Judge Gawthrop’s clear statement to the contrary. In footnote six of his adjudication, he comments that the figures for overtime pay had undergone a revision which “lowered the amount sought to about one-third of the original, in order to reflect appropriate diminution or set-off of this claim by the number of hours less than 40 per week the police officers worked during the period in question.”
Although a footnote is an unusual feature of an order, the en banc court’s final order, which we hereby affirm, confirmed that element of Judge Gawthrop’s adjudication. Therefore, this court makes clear that our affirmance means that the borough may, as ex-ceptant, elect to call for an accounting, in accordance with the terms of that order.
The officers contend that the en banc court abused its discretion by .striking Judge Gawthbop’s awards to the police pension fund. An .abuse of discretion is not merely an error in judgment; a court has abused its discretion when the record shows that it overrode or misapplied the law, exercised its judgment in a manifestly unreasonable manner or reached a conclusion as the result of partiality, prejudice, bias or ill will. Sherman v. Yoder, 59 Pa. Commonwealth Ct. 430, 430 A.2d 347 (1981).
The en banc court grounded its decision on the absence of a legal basis for the trial judge’s award. Although Judge Gawthbop may have successfully fashioned an equitable remedy, as we have discussed, mandamus is a legal action available only to enforce clear legal rights and duties. Township of South Fayette v. Commonwealth, 73 Pa. Commonwealth Ct. 495, 459 A.2d 41 (1983).
The pension fund, which was not a party, had no clear, enforceable right to receive the unspent insurance premiums from .the borough, and the officers
Accordingly, we affirm.
Order
Now, February 5, 1985, the order of the Court of Common Pleas of Chester County, No. 139 January Term 1981, dated May 19, 1983, is affirmed, with the sole modification that, to avoid indefiniteness, the borough shall make its election regarding an accounting not later than the 30th day following the date on which this order becomes final.
Tlie borough’s mayor and councilmen are also party appellants and appellees in the cross-appeal.
The officers, appellees here and appellants in the cross-appeal, are Albert J. McCarthy, Donald E. Mayo, Frank J. Zagorskie, Steven I-I. Guest, J. Stephen Little and Edward Zunino.
.Tudge Gawthrop’s order, exclusive of footnotes, provided:
1. Judgment be and is entered in favor of the plaintiffs named below, and against defendant Borough, in the stated ■sums, which are due and owing by the Borough for overtime work during the years 1978 through 1981:
a) Donald E. Mayo $1,053.48
b) Frank J. Zagorski 1,169.60
e) Albert J. McCarthy 1,118.00
d) .Steven H. Guest 1,126.64
e) J. Stephen Little 984.52
f) Edward' Zunino 1,565.40
2. The Borough is hereby ORDERED to purchase, forthwith, term life insurance in the amount of $25,000 for each Borough police officer for the unexpired term of the current contract. In any event, such insurance shall be purchased not less than thirty (30) days from .the signing of this Order.
*411 3. Judgment is entered against the Borough in the amount of $3,151.69, which is the sum of the premium it had the duty to expend for term Ufe insurance for Police Officers for the years 1975 through 1981, said sum to be paid to the police pension fund.
4. Judgment is entered against the Borough in the amount of $4,000, which sum represents monies the Borough had the duty to expend for disability insurance under the terms of the 1975 award and 1976 contract, said sum to be paid to the Police Pension Fund.
In calendar years 1975, 1977 and 1980, arbitration awards were in effect; in all other years the parties successfully negotiated coHeetive bargaining agreements.
The adjective “new”, which appears in both the original opinion of the court and the regional reporter, was inadvertently omitted from the official -report of the case.
We also note that each arbitration award and collective bargaining agreement provided that all benefits from earlier awards and agreements would carry forward, reinforcing the trial court’s conclusion that the borough’s duty to the officers was ongoing and currently enforceable.
Footnote six of Judge Gawthrop’s order provided:
These figures are those presented in Exhibit P-9, on the sheet entitled “Monies Owed”, revised August 25, 1975. We observe that such revision lowered the amount sought to about one-third of the original, in order to reflect appropriate diminution or set-off of this claim by the number of hours less than 40 per week the Police Officers had worked