Whether Every Legally Authorized Pennsylvania Police Force Falls Under the Governance of Either the Pennsylvania Borough Code or the Police Tenure Act?

Deforte v. Borough of Worthington, 2017 WL 11026532017 (W.D. Pa. 2017) (unreported), Third Circuit Nos. 17-1923 and 17-1924, petition for certification of question of state law, granted July 17, 2018, appeal docket 24 WAP 2018

William DeForte and Evan Townsend were terminated from their positions as police officers for the Borough of Worthington, Armstrong County. They sued in federal district court contending that they had a legitimate expectation of continued employment pursuant to either the Pennsylvania Borough Code or the Pennsylvania Police Tenure Act, and that the mayor and others violated their right to due process because neither received notice or a hearing prior to termination.

The district court granted the defendants’ motion for summary judgment based on its conclusion that neither the Borough Code nor the Police Tenure Act protected DeForte and Townsend because they were part time non-salaried employees.  DeForte and Townsend appealed to the Third Circuit, and the Third Circuit petitioned the Pennsylvania Supreme Court for certification of a question of state law, which the Pennsylvania Supreme Court will decide based on briefing and oral argument. 

The issue of state law is whether DeForte and Townsend, who worked part time for an hourly wage, were members of a police force for purposes of civil service protections under either of the statutes.  At all times relevant to the claims in this case, the Worthington Borough Police Department had a total of four part-time officers, including DeForte and Townsend.

The Borough Code applies to boroughs that have a police force of at least three members. However, a “police force” is defined so as to exclude police who are not paid a stated salary to “devote their normal working hours to police duty.” 53 P.S. §46195.  (The Borough Code provisions in question have since been codified in Title 8 of Pennsylvania’s Consolidated Statutes). The district court therefore concluded that neither DeForte and Townsend nor the two other part-time members of the Borough’s police department were members of a “police force” subject to the protections of the Borough Code’s civil service system.  The district court relied in part on other Pennsylvania federal district court decisions concluding that part-time police officers who were compensated on an hourly basis had no legitimate expectation of continued employment under the provisions of the Borough Code.  The court distinguished Pennsylvania decisions under the Police Tenure Act, including Petras v. Union Twp., 187 A.2d 171, 174 (Pa. 1963), which held that the relevant test for determining “full time” employment “is not the number of days, length of hours, or terms of employment but rather whether or not the duties were such that [the plaintiff] was `available for full employment,’ that is[,] on call at any and all times.” The court concluded that the cases had interpreted the Police Tenure Act (which applies only to municipalities with fewer than three police officers), not the Borough Code, and that in any event the facts in this case revealed that DeForte and Townsend had other jobs and were not “available for full employment.”

The Police Tenure Act extends civil service protections to a person “employed as a regular full time police officer” in a police department that has “less than three members.”  53 P.S. §§ 811, 812.  Rejecting DeForte and Townsend’s alternative contention that, if they are not entitled to the protections of the Borough Code’s civil service provisions, then the protections of Police Tenure Act must apply, the district court reasoned that the Commonwealth Court had held that for purposes of determining the size of the subject police force under the Police Tenure Act, it matters not whether the force consists of full-time or part-time officers, so that the Act clearly does not apply to the Borough of Worthington’s four member part-time force.  And even if the Police Tenure Act did apply to the Borough’s four-member force, the district court held, it offered civil service protections only to full time employees, and DeForte and Townsend were part-time.

The result of the district court’s decision is that, although Pennsylvania has two statutes that apply to police civil service protections, the Borough Code for forces of at least three members, and the Police Tenure Act for forces fewer than three members, neither statute provided protections for the Borough of Worthington’s officers during the period in question, because all four members at the time DeForte and Townsend were dismissed were part-time.  Moreover, although Pennsylvania courts have developed a test to determine whether an officer was part-time or full time under the Police Tenure Act, there does not appear to be a similar test to determine whether an officer is part-time or full time under the Borough Code.

Accordingly, the Third Circuit has asked, and the Pennsylvania Supreme Court will decide whether, under Pennsylvania law,

(1) The Pennsylvania Borough Code and the Police Tenure Act must be read in pari materia, such that every legally authorized police force in Pennsylvania fall under the governance of one of those two state statutes, and

(2) If not, whether the same test should be used to determine whether the Tenure Act ‘s two-officer maximum and the Borough Code’s three-officer minimum is satisfied.