William DeForte v. Borough of Worthington

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 17-1923
____________
WILLIAM DEFORTE,
Appellant
v.
BOROUGH OF WORTHINGTON;
KEVIN FEENEY, Individually and as Mayor of the Borough of Worthington;
BARRY ROSEN, Individually and as a member of
Council of the Borough of Worthington and in his capacity as
elected constable for the Borough of Worthington and in his capacity as
Public Safety Director for the Borough of Worthington;
GERALD RODGERS, Individually and as a police officer of the Borough of
Worthington
____________
No. 17-1924
_____________
EVAN TOWNSEND,
Appellant
v.
BOROUGH OF WORTHINGTON;
KEVIN FEENEY, Individually and as Mayor of the Borough of Worthington;
BARRY ROSEN, Individually and as a member of Council of the Borough
of Worthington and in his capacity as elected constable for the
Borough of Worthington and in his capacity as Public Safety Director
for the Borough of Worthington;
GERALD RODGERS, Individually and as a police officer
of the Borough of Worthington
Before: SMITH, Chief Judge, GREENAWAY, JR., and KRAUSE, Circuit Judges
_____________________
ORDER
_____________________
In a petition for certification of question of state law to the Pennsylvania
Supreme Court, this Court requested an answer to a question regarding the
interpretation of two Pennsylvania statutes: the Borough Code and the Police Tenure
Act. The Pennsylvania Supreme Court granted the petition and issued an opinion
dated July 17, 2019. The Court answered our petition, stating:
In sum, then, and in answer to the two-part question forwarded by the
Third Circuit: (1) the civil service protections embodied in the Borough
Code and the Tenure Act are broadly in pari materia insofar as they are
intended to govern all borough police forces; and (2) when calculating
the size of a borough police force in any given case the same test should
be used. More particularly, the “normal working hours” criterion
contained in the Borough Code should be employed to determine how
many members a borough police force has for purposes of deciding
whether the Tenure Act’s two-officer maximum or the Borough Code’s
three-officer minimum is implicated.
DeForte v. Borough of Worthington, No. 24 WAP 2018, __A.3d__, 2019 WL
3216545, *7 (Pa. July 17, 2019).
In reaching this conclusion, the Pennsylvania Supreme Court also provided guidance
on whether the exclusion under the Borough Code for “extra police” serving on an
hourly basis applied. It instructed that the “statutory exclusion does not apply to
part-time officers who are not ‘extra police.’” Id. at *5. In the Court’s view, the facts
as we described them, indicated the plaintiffs were part-time officers, but not
necessarily “extra police.” Id. For that reason, the exclusion was of “no relevance”
in answering whether one of the statutes applied. Id. In addition, the Court
explained that an “hourly wage is a form of compensation” that would satisfy the
statutory criteria of being officers “paid a salary or compensation for [their] work by
the borough” under the Borough Code. Id. at *6 (emphasis and alteration in original)
(quoting 53 P.S. § 46195). Part-time work, the Court declared, “is not dispositive.”
Id.
2
Given these answers by the Pennsylvania Supreme Court, we conclude that
William DeForte and Evan Townsend may have a property interest that is sufficient
to support their respective procedural due process claims. For that reason, we hereby
VACATE the District Court’s judgments entered on March 24, 2017, and REMAND
for further proceedings.
By the Court:
s/ D. Brooks Smith
U.S. Chief Circuit Judge
ATTEST:
s/Patricia s. Dodszuweit
Clerk
DATED: September 5, 2019
JK/cc: All Counsel of Record
3