R. Romutis v. Borough of Ellwood City

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Renee Romutis, as Executrix :

of the Estate of Mark Romutis, :

Appellant :

:

v. : No. 1689 C.D. 2018

: Argued: December 9, 2020

Borough of Ellwood City :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION BY JUDGE BROBSON FILED: February 10, 2021

Renee Romutis, as Executrix of the Estate of Mark Romutis, appeals from

an order of the Lawrence County Court of Common Pleas (trial court), dated

August 27, 2018, which granted summary judgment in favor of the Borough of

Ellwood City (Borough) and against (now decedent) Mark Romutis (Chief), who

served as a former police chief of the Borough, as to his breach of contract and

termination in violation of public policy claims.2 Chief asserts the trial court erred

1

This case was assigned to the opinion writer before Judge Brobson succeeded

Judge Leavitt as President Judge.

2

This appeal was initiated by Mark Romutis, who passed away in April 2020 during the

pendency of this appeal. By order dated September 11, 2020, the Court granted an application to

substitute his wife, Renee Romutis, in her capacity as Executrix of his estate, as the appellant in

this matter. Although Mrs. Romutis now carries the mantle of appellant herein, she is advancing

the claims of her deceased husband. Thus, for purposes of consistency, we refer to Chief and his

arguments throughout this opinion.

in determining that he was an at-will employee of the Borough and that the

Borough’s elimination of the chief of police position and, thus, his employment, did

not violate the Borough Code provision that confined removal of police to just cause

grounds.3 After careful review, we affirm.

I. BACKGROUND

In 2010, the Borough appointed Chief to the position of chief of police.

At the time, the Borough required Chief to complete a physical

examination, undergo psychological testing, undergo drug testing, and update his

Act 120 certification.4

Relevant here, the Borough and Chief executed an employment contract,

specifying terms and conditions of employment, in December 2010.

(See Reproduced Record (R.R.) at 17a-20a (Employment Contract).) As to its

duration, Section 2 of the Employment Contract provides: “The parties agree that the

appointment of [Chief] as the Chief of Police is an ‘at will’ position.”

(Id. at 17a (emphasis added).)

Section 4 of the Employment Contract, titled “Termination,” provides in

pertinent part:

A. By majority vote of Council, the [Borough] specifically retains

the right of removal for misfeasance and/or malfeasance. [Chief] may

3

The current Borough Code, 8 Pa. C.S. §§ 101-3501, became effective on June 17, 2014.

It replaced the former Borough Code, Act of February 1, 1966, P.L. (1965) 1656, as amended,

53 P.S. §§ 45101-48501, repealed by the Act of April 18, 2014, P.L. 432, but maintained many of

the former Borough Code’s provisions, particularly those relating to civil service for police and

fire apparatus operators. Those provisions appeared in subdivision (j) of the former Borough

Code, Sections 1 through 1195 of the former Borough Code, 53 P.S. §§ 46171-46195, and now

appear in Subchapter J of the current Borough Code, 8 Pa. C.S. §§ 1170-1194.

4

“Act 120” is oftentimes used informally to refer to the statute known as the Municipal

Police Officers Education and Training Act, 53 Pa. C.S. §§ 2161-2171.

2

be suspended, removed or reduced in rank for just cause, which

generally includes, but is not limited to:

1. Physical or mental disability affecting his daily ability to continue

in service, in which case the person shall receive appropriate

compensation and an honorable discharge from service.

2. Neglect or violation of any official duty.

3. Conviction of a misdemeanor involving moral turpitude or a

felony violation of the Pennsylvania Crimes Code[, 18 Pa. C.S.

§§ 101-9546].

4. Inefficiency, neglect, intemperance, immorality, disobedience of

orders, or conduct unbecoming an officer.

5. Intoxication while on duty.

6. Engaging or participating in the conducting of any political or

election campaign otherwise than to exercise his own right of

suffrage.

....

D. If the [Borough] shall terminate this [Employment Contract]

after the Probationary Period without just cause[,] [Chief] will be

entitled to salary compensation of six (6) months at the appropriate rate

defined herein. Payment will be in a lump sum payment.

(Id. at 18a (emphasis added).) The Employment Contract does not address the

potential elimination of the position of chief of police.

On May 5, 2014, the Borough Council voted to eliminate the position of chief

of police and, as a consequence, Chief’s employment. The Borough Council

reaffirmed its prior vote to eliminate the chief of police position on May 12, 2014.

Chief received notice of the elimination of his position by telephone and by letter on

May 22, 2014. Chief did not grieve the elimination of his position or pursue any

administrative remedies at that time before the Borough’s Civil Service Commission

(Commission).

The Borough submitted a release of claims to Chief for his signature prior to

tendering the six-month severance payment due for termination of employment

lacking just cause. Chief refused to sign the release or to accept the severance

3

payment. Instead, Chief repeatedly returned the severance payment. In 2015,

Chief filed a complaint against the Borough in the trial court. The complaint

included several counts related to Chief’s discharge. Specifically, Chief alleged the

elimination of his position/termination of his employment violated the Employment

Contract (Count I) and was against public policy (Count II), as codified in

Section 1190(a) of the Borough Code, 8 Pa. C.S. § 1190(a), formerly Section 1190 of

the former Borough Code, 53 P.S. § 46190(a), which limits the grounds for removal

of employees of a Borough police department. Chief also alleged claims of breach

of the implied covenant of good faith and fair dealing (Count III) and intentional

interference with prospective economic advantage (Count IV).

The Borough filed preliminary objections in the nature of a demurrer,

contending, in part, that the entirety of Chief’s complaint should be dismissed

because Chief failed to exhaust his administrative remedies before the Commission

prior to filing suit in the trial court. The Borough also asserted separate grounds for

dismissal of Counts II through IV of the complaint. Chief filed a response in

opposition to the Borough’s preliminary objections. With respect to the preliminary

objection based on failure to exhaust, Chief averred: “[Chief] was not a Civil Service

Employee. [Chief] was not subject to the rules outlined as a Civil Service hire as a

Chief of Police and therefore the . . . Commission did not have jurisdiction over this

matter.” (R.R. at 42a.)

After argument on the preliminary objections, the trial court overruled the

demurrer based on failure to exhaust administrative remedies. (Trial Ct. Order,

Aug. 15, 2016, at 1-2, R.R. at 56a-57a.) The trial court also overruled the

preliminary objection as to the termination in violation of public policy claim.

The trial court sustained the demurrers as to the counts for breach of implied

4

covenant of good faith and fair dealing and intentional interference with prospective

economic advantage. Following preliminary objections, then, only the breach of

contract and termination in violation of public policy claims remained in the suit.

The Borough filed an answer with new matter to the remaining claims, again

asserting a failure to exhaust administrative remedies through the Commission.

In his reply to new matter, Chief averred that his claim for wrongful termination under

Section 1190 of the Borough Code was properly before the trial court because he

“was not a civil service employee.” (R.R. at 72a.)

The Borough conducted a deposition of Chief, during which Chief admitted

that he did not write a letter to the Borough protesting in any way the elimination of

his position. (See Suppl. R.R. at 19b-20b.) Otherwise, the parties did not exchange

discovery. The Borough then moved for summary judgment on the breach of

contract (Count I) and termination in violation of public policy (Count II) claims.

The trial court held argument on the summary judgment motion. The trial court then

issued an order, granting summary judgment in favor of the Borough and dismissing

both claims. (R.R. at 124a-39a.) In its accompanying opinion, while the trial court

rejected some of the arguments in support of dismissal that the Borough advanced in

its motion, the trial court nonetheless reasoned that the breach of contract claim was

properly dismissed because Section 4.D. of the Employment Contract allowed

termination of Chief’s employment “without just cause,” provided the Borough paid

a lump sum severance payment equal to six months’ salary. (R.R. at 18a.) The trial

court found that the termination provision of the Employment Contract was

unambiguous and that it formalized an “at-will” relationship between the parties.

As to the termination in violation of public policy claim, the trial court rejected

the Borough’s argument that Chief failed to exhaust his administrative remedies.

5

The trial court reasoned that a borough is permitted to appoint a person as chief of

police independent of the civil service rules, that the Borough did so here, and that,

as a result, the administrative remedies through the Commission were not available

to Chief. (Trial Ct. Opinion, Aug. 27, 2018, at 11-12.) Nonetheless, consistent with

its exhaustion analysis, the trial court determined that because the Borough hired

Chief outside of the context of the Borough Code’s civil service process, as it could

do, the civil service protections afforded under the Borough Code, particularly

Section 1190(a) of the Borough Code, did not apply to Chief. (Trial Ct. Opinion,

Aug. 27, 2018, at 14-15.)

Chief appealed the trial court’s order to the Superior Court, which transferred

the matter to this Court. We review a trial court’s grant of summary judgment for

an abuse of discretion or error of law. In so doing, our scope of review is plenary,

and we apply the same standard on appeal to the summary judgment motion as

before the trial court. See Albright v. Abington Mem’l Hosp., 696 A.2d 1159, 1165

(Pa. 1997). After briefing and argument, the matter is ready for disposition.

II. DISCUSSION

A. Contentions

On appeal, Chief argues the trial court erred in granting summary judgment

to the Borough because there was an ambiguity in the Employment Contract

requiring additional factfinding regarding the employment relationship.

He contends the trial court erred in granting the Borough summary judgment on the

termination in violation of public policy claim because the Borough Code restricts

removal of a police chief to “just cause” grounds, none of which were met here.

In advancing this latter argument, Chief relies heavily on this Court’s

decision in Braun v. Borough of Millersburg, 44 A.3d 1213 (Pa. Cmwlth.),

6

appeal denied, 55 A.3d 525 (Pa. 2012), which, although briefed by the parties

below, the trial court did not address in its opinion. In addition, Chief asserts the

trial court erred in deeming him an at-will employee.

The Borough responds that Chief was an at-will employee pursuant to the

Employment Contract that permitted termination absent just cause upon payment of

severance. Because the Borough tendered the severance payment, the Borough

maintains it did not breach the contract. The Borough emphasizes that the six

grounds listed for “just cause” termination in the Employment Contract are not the

only permitted grounds for terminating Chief’s employment, because Section 4.D.

of the Employment Contract allows termination without just cause. It argues that

Chief cannot sustain a claim for termination in violation of public policy.

Alternatively, to the extent it was subject to the removal provisions in the Borough

Code, the Borough asserts Chief failed to exhaust his administrative remedies

through the Commission. The Borough attempts to distinguish Braun.

B. Summary Judgment

To prevail on a summary judgment motion, the moving party must show that

it is entitled to judgment in its favor on the asserted claims as a matter of law and

that the material facts underlying the claims are not disputed by the parties.

Scheetz v. Borough of Lansdale, 438 A.2d 1048, 1049-50 (Pa. Cmwlth. 1982).

“[S]ummary judgment may be entered only in a case that is clear and free from

doubt.” Rossi v. Pa. State Univ., 489 A.2d 828, 831 (Pa. Super. 1985).

A non-moving party may not rest on its pleadings; rather, it has an obligation

to adduce sufficient evidence on the matters on which it bears the burden of proof.

Ertel v. Patriot-News Co., 674 A.2d 1038, 1042 (Pa.), cert. denied, 519 U.S. 1008

(1996). In so doing, the non-moving party must show there is a genuine dispute of

7

material fact. Id. To the extent there are doubts as to the existence of a genuine

issue of material fact, the trial court must resolve such doubts against the moving

party and view the record in the light most favorable to the non-moving party.

Here, there is no dispute that the Borough eliminated the position of chief of

police which, in effect, removed Chief from his employment. There is also no

dispute that the employment relationship between the Borough and Chief is

impacted by the Employment Contract, which refers to the relationship as “at will”

(Employment Contract § 2, R.R. at 17a) and contains a termination provision

regarding termination and removal without just cause (Id. § 4.D., R.R. at 18a).

Further, as noted above by reference to Chief’s filings below, there is no dispute that

the Borough hired Chief outside of the civil service process set forth in the

Borough Code. These undisputed facts inform our disposition of this appeal.5

C. Analysis

1. Breach of Contract

5

This matter was first argued before a three-judge panel of the Court on October 3, 2019.

Thereafter, the Court, by per curiam order dated December 17, 2019, directed reargument before

the Court en banc limited to the following issue:

Whether a borough police chief hired outside of the statutory procedure set forth in

Section 1184(d) of the Borough Code, 8 Pa. C.S. § 1184(d), is, nonetheless, entitled

to the protection from removal afforded by Section 1190(a) of the Borough

Code, 8 Pa. C.S. § 1190(a), and, if so, whether a former chief asserting such

protection must avail him or herself of the administrative remedy before the

borough civil service commission prior to challenging his or her removal in court?

We directed the parties to file supplemental briefs on this issue and invited the participation of the

Pennsylvania Chiefs of Police Association (Chiefs Association) and the Pennsylvania State

Association of Boroughs (Boroughs Association) as amici curiae. The Boroughs Association filed

a brief, contending that police chiefs hired outside of the procedures of Section 1184(d) of the

Borough Code are not entitled to the protections from removal afforded under Section 1190(a) of

the Borough Code. The Boroughs Association also argues that any chief asserting such protections

must avail him or herself of the administrative remedies set forth in the Borough Code. The Chiefs

Association did not file an amicus brief.

8

The trial court recognized that the Employment Contract impacts the

employment relationship between the Borough and Chief. The three prerequisites

for a breach of contract claim are: (1) a contract; (2) breach of duty imposed by the

contract; and (3) resultant damages. See, e.g., Sewer Auth. of City of Scranton v. Pa.

Infrastructure Inv. Auth., 81 A.3d 1031, 1041-42 (Pa. Cmwlth. 2013). The trial court

construed the terms of the Employment Contract to discern whether the Borough

breached a contractual duty when it eliminated the position of police chief and,

consequently, ended Chief’s employment with the Borough.

The trial court discerned the intent of the parties from the writing itself.

It concluded that the terms in Section 4 of the Employment Contract, titled

“Termination,” were clear and unambiguous. Although the Employment Contract

provided grounds for “just cause” termination, which mirrored the just cause

removal provisions in Section 1190(a) of the Borough Code, it also expressly

permitted termination “without just cause.” (Employment Contract § 4.D.,

R.R. at 18a.)

The trial court did not err when it determined, based on the undisputed

material facts, that the Borough was entitled to summary judgment on the breach of

contract claim. Chief fails to identify the breach the Borough committed, other than

alluding to the public policy underlying the just cause removal provision contained

in Section 1190(a) of the Borough Code. The Borough did not breach its contractual

duty when it discharged Chief from employment without just cause. Where the

Borough lacked just cause for termination, as was the case here, the Employment

Contract still allowed termination but required a lump-sum payment of severance

equal to six months’ salary. There appears to be no dispute of material fact that the

9

Borough attempted to tender the severance payment on more than one occasion,

but Chief repeatedly refused to accept it.

There is no claim or evidence of unequal bargaining power between the

Borough and Chief. Chief does not contend that the Employment Contract

amounted to a contract of adhesion. He does not assert unconscionability as a

defense to the enforcement of the Employment Contract. See, e.g., Salley v. Option

One Mortg. Co., 925 A.2d 115, 119 (Pa. 2007) (“[A] contract or term is

unconscionable, and therefore avoidable, where there was a lack of meaningful

choice in the acceptance of the challenged provision and the provision unreasonably

favors the party asserting it.”). To the contrary, Chief negotiated a favorable term

in what is otherwise an at-will contract—i.e., a lump-sum severance if he is

dismissed for any reason other than for cause. Chief does not contend that the

Borough denied any request by him to be hired under the statutory procedure set

forth in Section 1184(d) of the Borough Code. In other words, there is no argument

or evidence that Chief did not negotiate the terms of and freely enter into the

Employment Contract and, as a consequence, forego any protections he would have

had if he had been hired under Section 1184(d) of the Borough Code.

Further, Chief did not submit any evidence of a breach of contract by the

Borough. Although he contests the Borough’s ability to eliminate his position or

discharge him for other than “just cause” grounds set forth in Section 4.A. of the

Employment Contract, Chief does not claim he had a fundamentally different

understanding of the contract terms at the time he agreed to them. The Employment

Contract did not guarantee a period of continued employment; as to “Duration,”

it provided that the relationship was “at will.” (R.R. at 17a.) The Borough’s

termination of Chief’s employment, without just cause, was in accordance with

10

Section 4.D. of the Employment Contract. As a result, the trial court did not err in

granting the Borough summary judgment on the breach of contract claim.

2. Public Policy/Borough Code

We now turn to Chief’s claim that even if the Borough’s termination of his

employment was consistent with the Employment Contract, it nonetheless violated

public policy. We readily agree with the trial court that what Chief claims is a public

policy argument is, in actuality, an argument that he is entitled to the protection from

removal afforded under Section 1190(a) of the Borough Code, which provides:

(a) General rule.–No person employed in any police or fire

force of any borough may be suspended without pay, removed or

reduced in rank except for the following reasons:

(1) Physical or mental disability affecting the person’s ability

to continue in service, in which case the person shall receive an

honorable discharge from service.

(2) Neglect or violation of any official duty.

(3) Violation of any law if the violation constitutes a

misdemeanor or felony.

(4) Inefficiency, neglect, intemperance, immorality,

disobedience of orders or conduct unbecoming of an officer.

(5) Intoxication while on duty.

(6) Engaging or participating in the conduct of a political or

election campaign while on duty or in uniform or while using

borough property otherwise than to exercise the person’s own right

of suffrage.

(7) Engaging or participating in the conduct of a political or

election campaign for an incompatible office . . . .

(Emphasis added.)6 The legal question, then, is whether, based on the undisputed

material facts, Chief is entitled to this protection. The trial court ruled that he was

not, and we agree.

6

The “Removals” provision in Section 1190(a) of the current Borough Code is functionally

identical to the prior “Removals” provision in former 53 P.S. § 46190.

11

Section 1190 is found in Subchapter J of the Borough Code, relating to civil

service protections afforded to police officers and firefighters. This subchapter, like

its predecessor in the prior Borough Code, sets forth a comprehensive scheme for

the hiring, promotion, and dismissal of police officers within boroughs.7

It establishes a civil service commission within every borough that maintains a

police force. 8 Pa. C.S. § 1172(a). With respect to the filling of positions on a police

force, “except that of chief of police,” it provides that the borough council must

appoint from a list of eligible candidates certified by the civil service commission.

8 Pa. C.S. § 1184(b). With respect to a vacancy in the office of chief of police,

however, Section 1184(d) of the Borough Code separately provides:

(1) In the case of a vacancy in the office of chief of police . . . ,

or equivalent official, the council may nominate a person to the

commission.

(2) The commission shall subject the nominated person to a

noncompetitive examination, and, if the person is certified by the

commission as qualified, the person may then be appointed to the

position and shall be subject to this subchapter.

(Emphasis added.)

As the trial court pointed out in this matter, this Court has held that the civil

service procedure for hiring a chief of police set forth in Section 1184(d) of the

Borough Code is not mandatory. See Norristown Fraternal Ord. of Police, Lodge 31

by Santangelo v. Borough of Norristown, 662 A.2d 1151, 1154 (Pa. Cmwlth.),

appeal denied, 668 A.2d 1140 (Pa. 1995). This means that a borough can hire its

chief of police through this alternative civil service procedure or not. If it chooses

to do so, and if the commission certifies the appointed candidate as qualified, then,

according to the clear and unambiguous language of the statute, that appointed

7

But see 8 Pa. C.S. § 1171(a) (relating to nonapplicability of subchapter).

12

person “shall be subject to” Subchapter J of the Borough Code, which includes the

protections from removal afforded by Section 1190(a) of the Borough Code.

As noted above, however, it is undisputed that the Borough did not hire Chief

under this alternative civil service process. Indeed, nowhere in his filings below or

in his brief on appeal to this Court does Chief allege, let alone establish (a) that the

Borough nominated him to the Commission, (b) that the Commission subjected him

to a noncompetitive examination, and/or (c) that the Commission certified him to

the Borough as qualified for the position of chief of police before the Borough hired

him to that position. In interpreting and applying a statute, particularly one as clear

and unambiguous as Section 1184(d) of the Borough Code, we must be mindful of

what the statute says and what it does not say. Hanaway v. Parkesburg Grp.,

LP, 168 A.3d 146, 154 (Pa. 2017); see also 1 Pa. C.S. § 1921(a) (“The object of all

interpretation and construction of statutes is to ascertain and effectuate the intention

of the General Assembly.”). Here, the statute provides that chiefs hired pursuant to

the alternative civil service procedures set forth in Section 1184(d) of the Borough

Code “shall be subject to” Subchapter J, which includes Section 1190(a) of the

Borough Code. It does not provide that borough police chiefs, like Chief here,

hired outside of this statutory process enjoy the same protections. To conclude

otherwise—i.e., that all Borough police chiefs are subject to the protections

afforded under Subchapter J of the Borough Code regardless of how they are

hired--would render language in Section 1184(d)(2) mere surplusage.

See 1 Pa. C.S. § 1921(a) (“Every statute shall be construed, if possible, to give effect

to all its provisions.”); see White v. Assocs. in Counseling & Child Guidance,

Inc., 767 A.2d 638, 642 (Pa. Cmwlth.) (en banc) (“The courts must construe every

13

statute, if possible, to give effect to all of its provisions so that none are rendered

mere surplusage.”), appeal denied, 781 A.2d 151 (Pa. 2001).

This Court’s decision in Braun, which is very light on detail and analysis,

is not to the contrary. In Braun, a former borough police chief challenged

his dismissal as improper. The former chief claimed, inter alia, that the

borough removed him from his post for economic reasons, which was not a

permitted ground for removal under Section 1190(a) of the former Borough Code,

formerly 53 P.S. § 46190. The borough filed preliminary objections in the nature of

a demurrer, contending that the former chief’s wrongful termination suit was

deficient because (1) he was an at-will employee, (2) he did not allege that he had

civil service protections, (3) he was not a tenured employee, (4) he did not allege

that he had employment contract, and (5) he was not part of a bargaining unit.

Braun, 44 A.3d at 1215. The trial court sustained the preliminary objections and

dismissed the former chief’s complaint. On appeal, we reversed, concluding that the

chief was protected from removal for economic reasons under Section 1190(a) of

the former Borough Code. In rejecting the borough’s arguments to the contrary, this

Court expressly observed: “As the trial court noted, [the former chief’s] hiring

was subject to civil service appointment.” Id. at 1216 n.6 (emphasis added).

This is not Braun. Unlike the trial court in Braun, the trial court in this matter

overruled the preliminary objections challenging Chief’s claim that he was entitled

to the protections from removal set forth in Section 1190(a) of the Borough Code.

Instead, the trial court here decided that issue on summary judgment, based on

undisputed material facts. Critically, in Braun, this Court and the trial court found

that the former chief in that case was subject to civil service appointment. Here, it

is undisputed that the Borough did not nominate Chief to the Commission, that the

14

Commission did not subject Chief to a noncompetitive examination, and that the

Commission did not certify Chief to the Borough as qualified prior to his

appointment. In short, unlike the former chief in Braun, Chief’s hiring here was not

subject to civil service appointment.

III. CONCLUSION

For the reasons set forth above, we find no abuse of discretion or error by the

trial court in this matter. It appropriately dismissed on summary judgment Chief’s

breach of contract and termination in violation of public policy claims based on the

undisputed material facts. The Borough did not breach the Employment Contract

when it terminated Chief for other than just cause and offered him a severance.

Further, because it is undisputed that the Borough hired Chief outside of the

alternative civil service process set forth in Section 1184(d) of the Borough Code,

we cannot extend the protections of Section 1190(a) of the Borough Code to Chief

under the guise of “public policy” without acting contrary to the express intent of

the General Assembly.

Accordingly, we affirm the trial court’s order granting summary judgment and

dismissing the remaining counts of Chief’s complaint.

P. KEVIN BROBSON, Judge

15

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Renee Romutis, as Executrix :

of the Estate of Mark Romutis, :

Appellant :

:

v. : No. 1689 C.D. 2018

:

Borough of Ellwood City :

ORDER

AND NOW, this 10th day of February, 2021, the order of the Court of

Common Pleas of Lawrence County, dated August 27, 2018, is AFFIRMED.

P. KEVIN BROBSON, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Renee Romutis, as Executrix of the :

Estate of Mark Romutis, :

Appellant :

: No. 1689 C.D. 2018

v. :

: Argued: December 9, 2020

Borough of Ellwood City :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENEE COHN JUBELIRER, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

DISSENTING OPINION

BY JUDGE McCULLOUGH FILED: February 10, 2021

The uncontroverted evidence of record establishes that the Borough of

Ellwood City (Borough) entered into an at-will employment contract with a then

chief of police, Mark Romutis (Chief), and terminated his employment without just

cause. The Borough did so despite the clear and unmistakable pronouncement by

our General Assembly in Section 1190(a) of the Borough Code that “[n]o person

employed in any police . . . force of any borough may be . . . removed . . . except

for the following reasons,” none of which are applicable here. 8 Pa.C.S. §1190(a);1

1

Act of February 1, 1966, P.L. (1965) 1656, as amended, formerly 53 P.S. §46190(a),

repealed by the Act of April 18, 2014, P.L. 432.

see DeForte v. Borough of Worthington, 212 A.3d 1018, 1021 (Pa. 2019); Borough

of Pitcairn v. Westwood, 848 A.2d 158, 160-61 (Pa. Cmwlth. 2004).

Clearly, Section 1190(a) of the Borough Code2 is a “just cause” or

“tenure” provision, and it requires that police officers, including the chief of police,

be discharged solely for the reasons enumerated therein. See DeForte, 212 A.3d at

1023-24. It is beyond cavil that, as a matter of law, this statute is incorporated into

the employment contract between the Borough and Chief. See DePaul v.

Kauffman, 272 A.2d 500, 506 (Pa. 1971) (“[T]he laws in force when a contract is

entered into become part of the obligation of contract with the same effect as if

expressly incorporated in its terms.”). As a result, the just cause provision negates

2

Section 1190(a) of the Borough Code states as follows:

(a) General rule. -- No person employed in any police or fire force

of any borough may be suspended without pay, removed or

reduced in rank except for the following reasons:

(1) Physical or mental disability affecting the person’s ability to

continue in service, in which cases the person shall receive an

honorable discharge from service.

(2) Neglect or violation of any official duty.

(3) Violation of any law if the violation constitutes a misdemeanor

or felony.

(4) Inefficiency, neglect, intemperance, immorality, disobedience

of orders or conduct unbecoming of an officer.

(5) Intoxication while on duty.

(6) Engaging or participating in the conduct of a political or

election campaign while on duty or in uniform or while using

borough property otherwise than to exercise the person’s own right

of suffrage.

(7) Engaging or participating in the conduct of a political or

election campaign for an incompatible office as provided in section

1104(f) (relating to appointments and incompatible offices).

8 Pa.C.S. §1190(a).

PAM - 2

and displaces the at-will section of the employment contract because the at-will

section contravenes, and is incompatible with, the well-defined and strong public

policy enunciated by our General Assembly in Section 1190(a) of the Borough

Code. See DeForte, 212 A.3d at 1023-24; Appeal of Homer, 170 A.2d 848, 849-50

(Pa. 1961).

Contrary to the conclusion reached by the majority, the

comprehensive statutory scheme of the Borough Code provides that the only way

the Borough could have hired or employed Chief was through the nomination and

appointment procedure currently set forth in Section 1184(d)(2) of the Borough

Code, 8 Pa.C.S. §1184(d)(2);3 see Stumpp v. Stroudsburg Municipal Authority, 658

A.2d 333-35 (Pa. 1995); Braun v. Borough of Millersburg, 44 A.3d 1213, 1215-16

& n.6 (Pa. Cmwlth. 2012). In other words, once the Borough hired Chief and

officially appointed him to the position of chief of police, our General Assembly

unequivocally mandated that Chief was entitled to receive the protection of the just

cause provision. Section 1184(d) of the Borough Code, 8 Pa.C.S. §1184(d),

formerly 53 P.S. §46184; see Braun, 44 A.3d at 1216 n.6; Appeal of Homer, 170

A.2d at 849-50.

In arriving at a contrary conclusion, the majority misconstrues Section

1184(d) of the Borough Code, placing undue emphasis on the word “may” as the

exclusive basis for its conclusion that the Borough officials possessed discretionary

authority to enter into an at-will contract with Chief.4 However, a plain reading of

3

Section 1184 of the Borough Code, repealed by the Act of April 18, 2014, P.L. 432,

formerly 53 P.S. §46184.

4

Section 1184(d) of the Borough Code states as follows:

(Footnote continued on next page…)

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the statute in its proper context compels the conclusion that, in the event there is a

vacancy in the position of chief of police, a borough “may,” but does not have to,

nominate a chief of police. If the borough decides to go further and “appoint” a

chief of police, and the civil service commission “certifies” the chief, Section

1184(d) of the Borough Code unambiguously states that the chief “shall be subject

to this subchapter,” i.e.—subchapter “J” of the Borough Code, which, as the

majority concedes, encompasses Section 1190(a) of the Borough Code and the just

cause provision. Ultimately, this reading of the Borough Code finds strong support

in the case law from our Supreme Court, wherein the Court reiterated “the general

rule that municipalities are not permitted to enter into employment contracts absent

authorizing legislation.” Stumpp, 658 A.2d at 334. Quite simply, the position of

chief of police is, per se, covered and governed by the civil service laws, and the

Borough Code contains one, and no more than one, procedure to hire (or enter into

a contract with) a chief of police, and that is found in Section 1184(d) of the

Borough Code.

Naturally, a borough cannot skirt or subvert the just cause provision of

the Borough Code by deciding not to utilize—and to actually violate—Section

(continued…)

(1) In the case of a vacancy in the office of chief of police . . . . , or

equivalent official, the [borough] council may nominate a person to

the [civil service] commission.

(2) The [civil service] commission shall subject the nominated

person to a noncompetitive examination, and, if the person is

certified by the [civil service] commission as qualified, the person

may then be appointed [by the borough council] to the position and

shall be subject to this subchapter.

8 Pa.C.S. §1184(d) (emphasis added).

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1184(d) of the Borough Code and its directive that a borough follow a specific

procedure for hiring a chief of police. See Deskins v. Borough of West

Brownsville, 131 A.2d 101, 102 (Pa. 1957) (“To construe the statute so as to

uphold the position of the [b]orough [c]ouncil would result in the emasculation of

the protective provisions of the [statute]. Any municipality would be at liberty to

nullify effectively the tenure law by simply appending time limitations to police

employment contracts. We will not presume the legislature intended such an

unreasonable result.”). Instead, the Borough “simply does not have the power

under [the] law to enter into contracts of employment that contract away the right

of . . . tenure . . . set forth in the enabling legislation.” Stumpp, 658 A.2d at 334.

Consequently, despite the fact that the Borough may not have complied with the

formal aspects for hiring Chief under Section 1184(d) of the Borough Code (in

bypassing the civil service commission and failing to conduct a competitive

examination), the Borough’s disobedience cannot escape the grasps of Section

1190(a) of the Borough Code and the fact that the just cause provision protects

Chief regardless of the terms of the at-will employment contract. See DeForte,

212 A.3d at 1025 n.8 (citing Petras v. Union, 187 A.2d 171 (Pa. 1963), for the

proposition that the just cause or tenure provisions of the Borough Code and the

Police Tenure Act5 apply to the dismissal of police officers even though the

officers may not have been hired through the civil service procedures contained in

those statutes). After all, by its very language, the just cause provision applies to

each and every “person employed in any police . . . force of any borough,” without

regard to the manner or means by which a police officer and/or chief is hired, and

it is undisputed that Chief was employed by the Borough as part of its police force.

5

Act of June 15, 1951, P.L. 586, No. 144, as amended, 53 P.S. §§811-816.

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In sum, the freedom to contract on a matter ends where, as here, the

terms of the contract stand in diametric opposition to and override explicit public

policy. Because the law necessitates that contractual terms must be nullified when

they run counter to clearly expressed public policy, I would conclude that the

designated representative of the now deceased Chief has adduced sufficient

evidence to support a viable claim for wrongful termination. See McLaughlin v.

Gastrointestinal Specialists, Inc., 750 A.2d 283, 286-87 (Pa. 2000). Accordingly, I

am unable to subscribe to the rationale adopted by the majority and the legal

conclusion that it reaches to affirm the decision of the court below granting

summary judgment in favor of the Borough on this claim.

For these reasons, I respectfully dissent.

________________________________

PATRICIA A. McCULLOUGH, Judge

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