R. Romutis v. Borough of Ellwood City

R
           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…)

                                             PAM - 3
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).



                                             PAM - 4
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.



                                           PAM - 5
            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




                                      PAM - 6

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