Edinger v. Upper Makefield Township

25 Pa. D. & C.3d 512, 1983 Pa. Dist. & Cnty. Dec. LEXIS 377
CourtPennsylvania Court of Common Pleas, Bucks County
DecidedJanuary 5, 1983
Docketno. 79-7067-05-1
StatusPublished

This text of 25 Pa. D. & C.3d 512 (Edinger v. Upper Makefield Township) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Bucks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Edinger v. Upper Makefield Township, 25 Pa. D. & C.3d 512, 1983 Pa. Dist. & Cnty. Dec. LEXIS 377 (Pa. Super. Ct. 1983).

Opinion

GARB, P.J.,

This is a suit in assumpsit which was tried non-jury before the undersigned. On October 8, 1980 a verdict was entered in favor of defendant. Exceptions have been filed and argued before the court en banc. They axe discharged.

Plaintiff is the former chief of police of Upper Makefield Township. He was so employed from approximately June 3, 1975 until April 20, 1979. The first year of that employment was pursuant to an employment contract executed on June 3, 1975.1 A second contract was executed approximately one year later on August 6, 1976 and was in full force and effect until plaintiff terminated it by resignation effecitve April 20, 1979. Thereafter plaintiff instituted this law suit to recover $19,318.25 in overtime payments which he claims due him as well as $600 for dental costs and expenses which he claims due him as a fringe benefit. By our verdict we denied his right to recover these sums and we now reaffirm that determination.

Each of the employment contracts provided for [514]*514an annual salary. The first provided for $15,000 annually and the second for $16,500. Neither contract made any specific provision for overtime pay. The first contract was quite explicit in providing in paragraph 4 as follows:

“During the term of his employment Edinger shall devote his best efforts, and his entire time to the performance of the duties and obligations herein specified and shall be on call for such purposes twenty-four hours a day — it being understood that there is involved in this contract of employment no hourly rate of pay or required number of hours, but rather the daily supervision and administration of the department and the accomplishment of the purposes herein set forth.”

Quite obviously this is an explicit provision negating any consideration of overtime pay.

The second contract provides in paragraph 6 as follows:

“During the term of this Agreement Edinger shall devote his best efforts and his entire time to advance the interests of the Township and the police force of the Township; he may be called for duty at any time; he shall train, organize, administer and supervise the police force of the Township; he shall with the resouces available to him provide the best possible police protection to the residents of the township; and he shall generally carry out the orders and requests of the Supervisors of the Township in all matters properly relating to the police.” (Italics furnished.)

Although this does not contain the explicit language contained in the first contract regarding the question of hourly wage, we believe that this para[515]*515graph together with the rest of this second contract implicitly rules out any compensation for overtime pay. The compensation set forth in this contract is stated in terms of an annnual salary with no breakdown to an hourly ráte. Paragraph 6 of the second contract specifically provides that plaintiff may be called for duty at any time, and that he shall devote his entire time and makes no provision whatsoever for any special or additional pay for any time during which he may be so called.

In the absence of a special agreement as to additional compensation, or of evidence showing an intent to pay it, or of a uniform and notorious custom sufficient to show that the contract was made with reference thereto, an .employee may not recover compensation for extra work performed within the scope of his employment even if the extra work is done at the request of the employer. Pennsylvania Law Encyclopedia, volume 21, Labor Section 26. Overtime pay has been defined as payment or wages for work done calculated at a different rate than the basic wages: Aird v. United States, 116 F. Supp. 281 (E.D. Pa. 1953). Overtime has been defined to mean work beyond the regular fixed working hours. An overtime wage, therefore, is merely the portion of wages which is paid for the services rendered beyond those regularly fixed hours and is included in the all comprehensive term “wages.” Goodman v. Moss, 43 N.Y.S. 2d 381 (1943). There is obviously no provision made in either of these contracts for any overtime salary or wage either on an hourly basis or on any other basis. Rather each contract provides for a specific annual wage and each calls for the full time endeavors of plaintiff. Although the language of the first contract may be more explicit, we are satisfied that the language of the second contract is sufficiently certain so as to find no [516]*516implicit or any other kind of contractual basis to support the payment of overtime pay.2

Plaintiff contends that he is entitled to this overtime pay as a “fringe benefit.” The second contract in paragraph 3 in relevant part provides as follows:

“. . . Edinger . . . shall in addition receive such fringe benefits as the Township may maintain in effect for police officers of the Township subject to the specific restriction that Edinger shall receive no uniform or clothing allowance, or vehicle or vehicle allowance during the term of this Agreement.”

Paragraph 10 provides that Edinger shall receive all fringe benefits made available to other Township employees including 15 sick days per year, eight holidays per year, hospitalization, three personal days per year, and benefits under the township police pension plan.

Of course, fringe benefits are part of the compensation paid to any employee for the services he performs. For example, see Keystone Chapter of Associated Builders v. Commonwealth of Pennsylvania, _Pa. Commw__,414 A. 2d 1129 (1980) and J.H. Welsh & Son Contracting Company v. Arizona State Tax Commission, 420 P. 2d 970 (Arizona 1967). However, in these contracts wages or salary and fringe benefits are separately denominated. Plaintiff argues that he is entitled to overtime as a fringe benefit and in support thereof refers to Resolution number 39 adopted by the Board of Township Supervisors on September 1, 1972. This [517]*517resolution provides for the various requirements and conditions of employment of policemen hired by the Township. The resolution contained 13 separate paragraphs or categories relating to employment of policemen and refers specifically to physical examinations, probationary period, type of employment, rate of pay, work schedule, vacations, holidays, equipment, pensions, life insurance, hospitalization, liability insurance, and outside employment. There is then one last section dealing with part time officers. Rate of pay provision is made for the salaries of police officers together with annual increases. Under work schedule it is provided that each police officer shall work a 40 hour week with overtime to be paid at time and one half of regular hourly base rate.

Plaintiff argues that all of the provisions of Resolution 39 should be read into and incorporated as part of his employment contract and therefore reaches for the overtime pay provided therein. However, we believe this argument to be without merit. Quite obviously all of the provisions of Resolution 39 cannot be denominated as so-called fringe benefits. For example a physical examination is required prior to employment. Furthermore it is provided that the first year of employment is a probationary period. In addition it is provided that any outside employment must be approved by the Board of Supervisors.

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Related

J. H. Welsh & Son Contracting Co. v. Arizona State Tax Commission
420 P.2d 970 (Court of Appeals of Arizona, 1967)
Keystone Chapter of Associated Builders & Contractors, Inc. v. Commonwealth
414 A.2d 1129 (Commonwealth Court of Pennsylvania, 1980)
Aird v. United States
116 F. Supp. 281 (E.D. Pennsylvania, 1953)

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Bluebook (online)
25 Pa. D. & C.3d 512, 1983 Pa. Dist. & Cnty. Dec. LEXIS 377, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edinger-v-upper-makefield-township-pactcomplbucks-1983.