Somber v. Fabian

2 Pa. D. & C.3d 48, 1975 Pa. Dist. & Cnty. Dec. LEXIS 20
CourtPennsylvania Court of Common Pleas, Chester County
DecidedDecember 11, 1975
Docketno. 2954, 1975
StatusPublished

This text of 2 Pa. D. & C.3d 48 (Somber v. Fabian) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Chester County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Somber v. Fabian, 2 Pa. D. & C.3d 48, 1975 Pa. Dist. & Cnty. Dec. LEXIS 20 (Pa. Super. Ct. 1975).

Opinion

SUGERMAN, J.,

Plaintiff, Joseph F. Somber, as Mayor of the Borough of Phoenixville (“Borough”), filed the instant complaint in equity against defendants, Joseph A. Fabian, Richard N. Don and Peter J. Bradley in their [49]*49respective capacities of president of the borough council (“council”), of the borough, borough manager and finance officer, seeking to enjoin the payment by such officials of the salary of the chief of police of the borough for the period September 11 through September 20, 1975, and expenses to be presumably incurred by the chief while attending a convention of the International Association of Chiefs of Police to be held during the same period.

Defendants, by answer, admitted the material factual allegations of the complaint, but challenged the mayor’s conclusion that the Borough Code denies to council the power to act as it did.

The court granted a temporary injunction restraining the payment of the sums involved in order to preserve the status quo, and, by stipulation of the parties, a full and final hearing was held in the matter on August 19th, 1975, and the matter is now ripe for adjudication.

ISSUES

The issues requiring adjudication are simply stated: (1) Does the power to determine when the chief of police of a borough may leave his duties and take a vacation rest with the mayor or the borough council?; (2) may the borough council lawfully pay expenses to be incurred by the chief of police in attending a convention?; (3) does the borough council have the power to grant the chief of police a vacation with salary between specified dates notwithstanding an order from the mayor to the chief that he remain on duty between such dates? . . .

DISCUSSION

The factual setting at bar is simply stated and its [50]*50very recitation brings into immediate focus the principle issue to be resolved: The Borough Council of the Borough of Phoenixville created by ordinance a police force in the borough and, at the same time, created the office of chief of police. In April 1975, council appointed Joseph J. Kane to fill such office. There was apparently no specific contract of employment between Kane and the borough, either oral or in writing, setting forth the terms and conditions of employment, and no such evidence appears in the record. In June 1975, Chief Kane, a member of the International Association of Chiefs of Police, asked council for permission to attend a conference of that association to be held in Denver, Colorado, between September 11, 1975, and September 20, 1975, at the borough’s expense.

Learning of the chiefs request, the mayor of the borough, by written and oral statement to council, asserted initially that the power to determine the time when the chief of police performed his duties rested with the mayor and not with council. The mayor further asserted that he did not believe it to be in the best interests of either the police force or the community at large to permit the chief to leave his duties in order to attend the conference. Finally, the mayor advised council that he flatly disapproved the chiefs request to take leave of his duties to attend the conference, although the request had not been presented to him.

Notwithstanding the mayor’s sentiments on the subject, the council appropriated the sum of approximately $750 to pay the expenses to be incurred by the chief while attending the conference, and adopted a resolution granting the chief a vacation with pay during the period of the conven[51]*51tion. Although the recitals preceding the resolving clause of the resolution make reference to the convention, the resolving clause itself simply grants the chief a vacation with full pay.

On such record, then, the contending parties, executive on the one hand and legislative on the other, ask the court to define the respective powers of each in dealing with a borough chief of police, and to identify the party in whose hands rest the specific powers here involved. Before embarking upon either task, however, we must initially decide whether equity is an appropriate forum.

While the parties do not challenge the jurisdiction of the court sitting in equity to hear and adjudicate the issues, it is, nevertheless, our duty to make such determination: Balazick v. Dunkard-Bobtown Municipal Authority, 414 Pa. 182, 199 A. 2d 430 (1964).

If a remedy at law is shown to exist, complete and adequate in nature, equity will not assume jurisdiction: Harris-Walsh, Inc. v. Dickson City Borough, 420 Pa. 259, 216 A.2d 329 (1966). The remedy must be adequate “to the task of resolving plaintiffs’ objections.” Bliss Excavating Co. v. Luzerne County, 418 Pa. 446, 211 A. 2d 532 (1965).

At bar, the mayor, as plaintiff, seeks an order prohibiting the payment of borough funds for purposes allegedly beyond the power of borough council to advance. The’ mayor asserts that inasmuch as council had no authority to adopt the resolution of August 12, 1975, granting the chief of police a vacation, by logical extension, council has no authority to pay either his salary during the vacation period so fixed, or expenses to be incurred by him while attending a conference during such vacation [52]*52period. Thus, the mayor seeks to prevent the alleged improper or illegal expenditure of public funds.

Municipalities and their officers may be enjoined, in equity, from acting in excess of the powers granted them: Bechak v. Corak, 414 Pa. 522, 201 A. 2d 213 (1964); Mullen v. Board of School Directors of DuBois Area School District, 436 Pa. 211, 259 A. 2d 877 (1969). Such is the relief sought by the mayor instantly, and thus equitable jurisdiction is properly invoked.

We note in passing that, ordinarily, suits similar to the litigation before us are brought by taxpayers. See for example: Mayer v. Hemphill, 411 Pa. 1, 190 A. 2d 444 (1963). Defendants, however, do not raise the issue of the mayor’s standing to commence and prosecute the litigation, and we believe the issues inherent in the matter to be of sufficient importance so as to require us to reach the substance thereof. Accordingly, we do not here decide the question of standing, and in view of our disposition below, such decision is unnecessary: Mayer v. D’Ortona, 408 Pa. 518, 184 A. 2d 582 (1962).

It is fundamental that the powers of the mayor and the borough council are only such as are granted and bestowed by the Borough Code.1 Section 1121 of the Borough Code, 53 P.S. §46121, provides, in pertinent part, the following:

[1121] “Borough council may, subject to the civil service provisions of this act, if they be in effect at the time, appoint and remove, or suspend, or reduce in rank, one or more suitable persons, [53]

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Bluebook (online)
2 Pa. D. & C.3d 48, 1975 Pa. Dist. & Cnty. Dec. LEXIS 20, Counsel Stack Legal Research, https://law.counselstack.com/opinion/somber-v-fabian-pactcomplcheste-1975.