HomeMy WebLinkAbout03-42581N THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
THOMAS L. DAY, JR.
VS.
BOROUGH OF CARLISLE
:No. O3- qZWg
: IN EQUITY
ACTION IN MANDAMUS
AND NOW this 28th day of August, 2003 comes Thomas L. Day, Jr., by and through
his attorney Joseph D. Buckley, and petitions that the Honorable Court mandate that the
Borough of Carlisle proceed as required under the law and under its Collective Bargaining
Agreement with the Carlisle Police Association and its member Thomas L. Day, Jr., based on
the following:
1. Petitioner is an adult citizen currently residing at 845 Baltimore Pike, Gardners,
Cumberland County, Pennsylvania 17324.
2. Respondent is a duly incorporated Borough, a political subdivision of this
Commonwealth, with offices located at 53 West South Street, Carlisle,
Cumberland County, Pennsylvania 17013.
3. At all times relevant to this petition, Petitioner was a uniformed police officer
employed by the Borough.
4. The Borough and the Carlisle Police Association, the duly authorized Collective
Bargaining Union for Carlisle Police Department's uniformed officers (43
P.S.§217.1-217.10 (Act 111)) (herein after called "the union"), are parties to a
Collective Bargaining unit agreement which took effect January 1, 2001 and does
not expire until December 31, 2003 (a True and Correct copy is attached hereto
and marked Exhibit A).
5. The agree~nent specifically provides the purpose of the Agreement is, inter alia:
"To promote and insure harmonious relations, cooperation and understanding
between the Borough and its police force, to insure true collective bargaining
as outlined in ... Act 111 of 1961 ... The agreement shall apply uniformly to
all police officers who are members of the bargaining unit ("the union")
6. Petitioner is a current member of the said bargaining unit, the union.
7. On or about the evening of April 27, 2003, Petitioner, while off duty from his
employment as a police officer for the Borough, attended a scheduled meeting of
the union as a union member and as a recently elected officer of the union.
8. The said union meeting was held at the Union Fire Hall located at 35 West
Louther Street, Carlisle, Cumberland County. PA 17013.
9. Said union meeting was attended by approximately 15 union members, none of
whom were on duty police officers.
10. At the said union meeting, Petitioner solicited and requested support from the
union members and the union's legal defense fund.
11. At the said union meeting, certain union members requested Petitioner's request
be tabled until a later time.
12. At the said union meeting, Petitioner withdrew his request for financial support
with the understanding that he would renew his request in the future.
13. While still in the union's meeting area and immediately after the official ending of
the meeting, many union members approached Petitioner with questions relating
to why he was requesting the support from the union, and why they should grant
him financial support.
14. These union members stated that they would be unable to make an informed
decision regarding his request for their union support unless they were provided
additional information from Petitioner.
15. While still in the union's meeting area and immediately after the official ending of
the meeting, and following repeated requests fi.om several union members,
Petitioner explained why he so needed the union members support.
16. While still in the union's meeting area and immediately after the official ending of
the meeting, Petitioner explained to the questioning union members that the
current system of discipline within the Police Department was neither fair,
equitable nor just.
17. While still in the union's meeting area and immediately after the official ending of
the meeting, Petitioner cited examples of how the then system of discipline for
police misconduct was unfair, inequitable and unjust.
18. These examples included reported complaints of misconduct by police officers
which included:
a. malicious mischief,
b. possible desmlction of public property,
c. public dmnkeness,
d. misuse and misappropriation of Borough property at private party
where alcohol was being consumed,
e. on-duty uniformed officer attending private drinking party,
f. officer intentionally changing police department records to show he
was at the scene of a reported burglary alarm when he was not, and
later falsifying records in an attempt to show the officer was at the
scene of the alarm when he was not.
19. Petitioner related that the resulting discipline should have been severe for the
admitted or founded complaints, but that because of personal friendships with
investigators that the officers involved received no discipline.
20. While still in the union's meeting area and immediately after the official ending of
the meeting, Petitioner related that he was being disciplined for reporting
additional allegations reported to him by citizens and other officers; the alleged
allegations were not investigated according to written Police Policies and
Regulations; and that when Petitioner later became frustrated with departmental
inaction to even review the various legitimate and serious allegations which were
of grave public concern, Petitioner was disciplined for complaining.
21. While still in the union's meeting area and immediately after the official ending of
the meeting, and in response to further questioning from union members,
Petitioner explained that the allegations of misconduct that were made to
Petitioner by others and duly reported, had to that date (April 27, 2003) not been
fully investigated and if investigated no discipline given. These allegations
included:
a. The fact that a police officer trapped a girl in a room, blocked her from
leaving by placing a chair under the door handle, told the girl if she
attempted to leave he would kill her, and then he pulled out his service
revolver.
b. That the same officer involved in the gun incident, and other incidents of
founded misconduct, may have been working part time at a private
employment job while also supposedly working for the Carlisle Police
Department as a full-time police officer and may have been fraudulent
receiving pay from the Borough while possibly working another paying
job as a private security guard.
22. While still in thc union's meeting area and immediately after the official ending of
the meeting, Petitioner also related that someone inside the police department had
deleted files from the official police records relating to the son of one of the
police lieutenants and that Petitioner had reported the deletion to the proper
management personnel and nothing was done.
23. Petitioner also claimed that the tree reason behind the management of the Police
Department's action in disciplining Petitioner was out of fear of his newly
appointed position as a union leader.
24. On or about May 5, 2003, the Borough's Chief of Police summoned Petitioner to
his office and told him that Petitioner was being investigated for statements he
had made to his fellow union members regarding the deletion of files from the
Official Records of the Carlisle Police Department involving the son of a Carlisle
Police Department Lieutenant.
25. At this meeting, Petitioner in response to questions posed by the Chief of Police,
believed the Chief, who was not a union member was over stepping the limits of
his authority and possibly violating the labor laws of this Commonwealth by
questioning Petitioner as to his statements to union members at and immediately
following the union meeting.
26. Because Petitioner believed the questioning was inappropriate, he did not give the
Chief any specific recantation of the evening's discussion as he believed the
matters discussed were related to union business, were only responses to pointed
questions by fellow union members who raised questions in an effort to help the
union members make informed decisions on union matter.
27. Petitioner also believed that the motivation behind the actions of the Chief of
Police and other management personnel was motivated by reasons other than the
true good of the organization as shown by the Chief's disregard for the written
rules and regulations concerning the procedures for investigating complaints of
police misconduct, the duties of the chain of command in such investigations, the
adverse effect that such disregard would have on the members of the union and
the need for a new provision in the union contract for discipline that was fair,
equitable and just.
28. !A~plt015flt~a'yd May 6, 2003, Petitioner was notified by the Chief of Police that he
was recommending that Petitioner be discharged from his position as a police
officer for answering questions posed him by fellow union members at or
following a scheduled union meeting which related to union matters. (A true and
correct copy is attached hereto and marked Exhibit B.)
29. The letter stated that Petitioner had accused a specific Lieutenant of deleting or
having someone delete the name of his son from the official records of the
Carlisle Police Department; that if such had been true it was potentially criminal
activity and therefore that Petitioner had accused the Lieutenant of a criminal act;
that the matter had been FULLY INVESTIGATED and that the accusations were
totally unfounded.
30. On May 6, 2003, the Chief of Police specifically notified Petitioner that his
investigation did uncover who had deleted the files and that it had not been the
Lieutenant, and when questioned if the person deleting the files was disciplined
for violating the law, the Chief refused to answer.
31. Petitioner has since been made aware of the identity of the person who had
deleted the files involving the Lieutenant's son ( a sergeant who directly reported
to the said Lieutenant)
32. Petitioner has been made aware that the said Lieutenant and the Sergeant who
deleted the files of said Lieutenant's son had had telephonic communications
between themselves sometime prior to the deletion of the files.
33. On May 7, 2003, Petitioner, through his attorney, responded to the Chiefs letter
of May 6, 2003, with a letter and denied that Petitioner ever accused anyone of
deleting files and that only files were being deleted, that he had reported the
deletion of files to his superiors, that he was told only two people could delete
files, the superior to whom he had reported the problem and one other person, the
Lieutenant whose son's files had been deleted. (A true and correct copy is
attached hereto and marked Exhibit C)
34. By letter dated May 9, 2003, Petitioner was dismissed as a police officer by the
Borough's Council. (A true and correct copy is attached hereto and marked
Exhibit D.)
35. On May 9, 2003, Petitioner appealed the Borough's decision to the Borough's
Civil Service Commission.
36. On May 19, 2003, Petitioner filed a grievance with the Chief of Police in
accordance with Step 1 of Article 12 of the Collective Bargaining Agreement,
claiming, inter alia, that his dismissal was based on his answers to questioning by
union members at the union meeting hall, in response to matters relating to union
issues, and that such action violated the letter and spirit of the collective
bargaining agreement. (A true and correct copy is attached and marked Exhibit E)
37. By memo dated May 23, 2003, received by Petitioner on May 27, 2003, the Chief
of Police denied Petitioner's request. (A tree and correct copy is attached hereto
and marked Exhibit F.)
38. Pursuant to Step 2 of the grievance procedures of Article 12 of the said Collective
Bargaining Agreement, on May 27, 2003, Petitioner by letter forwarded the
matter to the Mayor of Carlisle. (A true and correct copy is attached hereto and
marked Exhibit G.)
39. By letter dated June 2, 2003, received by Petitioner on June 6, 2003, the Mayor of
Carlisle denied the grievance. (A tree and correct copy is attached hereto and
marked Exhibit H.)
40. Pttrsuant to Step 3 of the grievance procedures of Article 12 of the said Collective
Bargaining Agreement, on June 9, 2003, Petitioner filed the grievance with the
President of Borough Council. (A true and correct copy is attached hereto and
marked Exhibit I.)
41. Step three of the grievance can not proceed until the grievance committee is
convened by the President of Borough Council.
42. Despite Petitioner's letter and the requirements of the said Collective Bargaining
Agreement's Grievance Procedure, and repeated calls to the Borough Council
President from Petitioner the most recent being today the 28th of August, 2003,
the Borough and its President have failed to comply with their duties and
obligations under the Labor Laws of this Commonwealth and the requirements of
their Collective Bargaining Agreement to proceed with step three by convening
the grievance committee.
43. Petitioner has no adequate remedy at law.
44. Petitioner has been forced to expend legal fees in the presentation of this matter
and therefore requests the Court award reasonable attorney fees for the Borough's
flagrant violations of its duties.
WHEREFORE, Petitioner requests that the Court order and direct the Borough
of Carlisle and its President to comply with the requirements of Step 3 of the grievance
procedure and schedule a meeting of the Grievance Resolution Committee and thereafter
render a decision within twenty (20) days and to order that the Borough pay Petitioner's
reasonable attorney fees and costs.
Res ctfully submitted
Supreme Court I.[,/# 38444 '
1237 Holly Pike
Carlisle, PA 17013
(717) 249-2448
VERIFICATION
The undersigned, Thomas L. Day, Jr., hereby certifies that the statements made in
the foregoing Action in Mandamus are true and correct to the best of his knowledge,
information and belief. It is understood that statements made herein are subject to the
penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities.
Thomas L. Day, Jr. %)
EXHIBIT A
COLLECTIVE BARGAINING AGREEMENT
BETWEEN THE
BOROUGH OF CARLISLE
AND THE
CARLISLE BOROUGH POLICE ASSOCIATION
For the Ye~rs
2001, 2002, and 2003
TABLE OF COI~TENT$
B.A.RG.&LN'ENG I..'N'IT DEFINED ................................................................................................ 2.0
BOROUGH AL'I'HORITY DEFINED ................................ 3.0
CALL-IN PAY ......... 4.04
COURT TItlE PAY ................................................................................................
DETECTIVE I~'C RE,~,~.NT ........................................................................................... 14.0
EDUCATIONAL REL'vEB URSElVI~NT .................................................................................... 18.0
FL~-ER.~d. ~,-v .................................
LE ............................................................................................. 9.0
G RI~ V"LN'C E PROCEDURE ..................................................................................... ll.0
HOLIDAYS ................................................................................................................. 7.0
HOLVR$ OF WORK ............................................................................... 4.02
D~SL'RANCF.. ......................................................................................................................... I 0.0
JOB CL.4.SSI~'ICATION AND RATES OF PAY ......................................................................... 4.0
X-9- D;CR.E.M£~T .................................................................................................................... 16.0
LONGE'vTI~' ?AY~ .......................................................................................................................... 13.0
~I'E£TD;GS .............................. '. ......................................................................................................... 21.0
OFFICER-D;-CE-XRGE ~CB3'ME.N'T ........................................................................................ 15.0
O%'~RT'D,~ ................................................................................................................................. -k 03
PH%'SIC.63. t~ ! 3'ESS }L&//N ! ~.MA.NCE PROGRA~%I .................................................................... 20.0
PURPOSE OF AGR~E~IEh-r ........................................................................................................... 1.0
~ ] [F,~.%[F.¥'f .................................................................................................................................. 11.0
~KP.~R/&BILIT% ................................................................................................................................... 0
SICK LEA%'E .......................................................................................................................................
STRESS COL.'~'SELE~'G ................................................................................................................... 19.0
TER.',! OF AGR~L%[E?.-r .............................................................................................................. 24.0
TER/%IE~'AT!ON OF E..%[PLOYi%IEh'T ........................................................................................... ! 7.0
TOT.4/.ITY OF AGP, E£.~,IEh"T ........................................................................................................ 23.0
%. ,'II=OR/! ALLO%%.~.NCE ...............................
%'ACAT] O.%'$ ....................................................................................................................................... 6.0
.~P P 5.%'D tX A ................................................................................................................ ] .........................
COLLECTIVE BARGAINING AGREEMENT
BETWEEN THE
BOROUGH OF CAR.LISLE
AND TI-I~
CARLISLE BOROUGH POLICE ASSOCIATION
This Collective BargalnJng A.~'eement (hereinafter called 'A~'eement") represents the entire
a~eement concerning the terms and conditionz of employment for the police officers identified in Article
II of th~ A~ment and was reached as a result of collective bargaining between the Carlisle Borough
Po]ice Associa:ion and the Borough of Carlisle (hereinafter called "Borough"), in accordance with the
requirements ¢,: Act Ill of 19657 and shall be effective ~'om .~anua~ 1, 2001, through December .~I.
2003.
! .00
,4~TICI.,£ I
Put.se
It is the purpose of this Agreement to pro'mote and insure harmonious relations, cooperation, and
understanding between the Borough and its police force; to insure true collective bargaining as
outlined in Sections I and 2 of'Act 111 of 1968; to establish wages, hours, and other condhions of'
employment and benefits for :he period Janua.ry 1, 2001, through December 31, 2003; and to
protect the interests of the Boroia_~-~ as the municipal employer responsible for the safety of
citizens and property, in the cornmuniD'. The Borough and Association pledge their cooperation to
work together under this Agreement in order to insure continued improvement and efficiency of'
police services to the citizens of' Carlisle Borough. This Agreement shall apply unit'orrniy to all
police officers who are members of' the bargaining unit.
It is a~eed by the Borough and the Carlisle Police Association that the Borou~ prohibits
discrimination in all employment practic~ including job application procedures, hiring firing.
advancement, compensation, training, conditions and privileges of employment. Ail personnel
actions will be based on qualifications and abilities, not on race. color, reli_~on, ancest~', gender.
national origin, age or non-work related disabilities.
2.00
ARTICLE 11
_ Recognition.
Ba~ainin~ Unit
The bargaining unit for purposes of this Agreement shall consist of all full.time, active police
officers, with the exception oft he Chief of Police and the Police Lieutenants.
ARTICLE Ill
Boroueh Authority
3.00 Borou_oh Authority
The Boroug. h retains all righti not specifically modified by the terms of this Agr~ment, which
ri~ts shall include but not be limited to the right to the selection, direction, assi[mment, and
s:hedu!ing of the operations of' the Boroug.~ Po!ice Department: the advancement of policemen to '
higher ranks; the determination of the number of policemen to be .employed or retained in
employment: the suspension, demotion or discharge of policemen: the establishment and
maintenance of standards of quality of performance and fitness; the eliminatio,",, change, .or
consolidation of jobs, departments, or subdivisions thereof, and the e~tablishmen: of a budget or
long-range plans for the police activities. In the exercise of these rights, the Borou.~. shall retain
:he ri~'..~ to adopt and enforce such reasonable rules and re.~lations, as it may d~m nee~saE,.'.
:nd proper with regard to the management of the operations of the Police Department. No
_c'ieva.-.:: may be filed in connection with the adoption or implementation of s:id rules and
.'tgula:5.'ns by the Borough.
ARTICLE i%'
Job Chssificafion & l~tes of Pay
4.00
For purposes of compensation under this a~eement, there shall be three job classifications: police
patrol officer; police corporal; and poi/ce sergeant. The compensation provided for in thii
A_m'eement is the total compensation for all officers in the above classlfcations..
&O1
Compensation shall be paid in accordance with the terms specified in ^ppendix ^ attached to this
A.m'eement.
4.02 Hour~ of Work
The normal workday shall consist of eight hours of work, and the normal workweek shall consist
of five ei~t-hour workdays in a seven.day calendar week. The Borou~ may require officers to
report up to 15 minutes prior to the commencement of their shhf. Such "reporting time" will not
be considered compensable time for overtime purposes except as required by the Fair Labor
Standards .Act. Nothing in this subsection or any other section or subsection of this A.~eement
shall be :onstrued as a guarantee of' a minimum or maximum number &hours m an)' workday .or
4.03 Overtime
Except as otherwise provided below, overtime shall be defined as any work in excess of
ei~t hours in a work day or in excess of 40 hours in' a work week provided, however.
that overtime premium will not be paid for ~ny hours worked in txc~s of ei~t hours in
say calendar d~y ~hich result from the o~c~:'s change in shii. Each police o~c~r who
:.~ required ~o work as a result of a shi~ change made ~s than 24 hours prior :o the last
s:heduled ~,ork shi~ shall be entitled ~o on~ and one-half:Jmes his/h~r no~al ra~ &pay
For ~haz shJ~ change. This sMiI not be a~cttd by the no~al change of sNRs. O~cers
sh=ll be required ~o ~ork o~t~ime whe~ so directed by th~ appropriate supem'isor.
O~cers ~Jl be compe~ated For overtime ~ork at a rate o~ one and one-half tim~ thdr
~ase hourly rate. There shall be no duplk~tJon o~ overtime pay for the s~me hours
worked under the provisions of this para,apb.
.-'.: the 13orough's discretion, up to t~o poii:e officers ma.',' be assi_~ned to a fiextime
::hedule ~';~r purposes of' undercover drug eafor:ement work. ~,\'hile on said fiextime
.~:hedule. o~ertime shall be paid solel.',' for hours t~orked in excess of 40 in a ~orkweek.
The provisions of the Fair Labor Standards Act shall govern for purposes of computing
cvertime tbr time spent in police training and education proD'ams required by the
~orough or state law.
Within the limits of the Fair Labor Standards Act. officers ma?' earn compensatoo' time
in lieu of overtime to a maximum of'40 hours (training and overtime combined).
Approval of the Chief shall be obtained prior to using earned comp time. No comp time
may be used until it is ~rned.
4.04
Call-ln ?ay
Office:.< are subject to be called in tq work or called back to work at any time. An officer who is
called :~ack to work at a time other than during his/her normal scheduled shift on a scheduled.
work ~..v will be paid for the hours he works. However, the o~cer will be guaranteed no less
than thr~ hours work at the appropriate rate of pa)'. When a police officer is called in earl)' to
his/her re~lar shift and works continuously from the time of reporting until the start or end of
his, her :egular shift, he shall be paid at the appropriate rate for the hours worked but the
guaran:..-,-~d number of hours of' work provision of this section shall not apply in such situations.
Also. :~: guarames of hours shall not apply when an o~cer is asked to work at the end of'his/her
shJR a.-.~ he works continuously Dom the end of' his/her regularl.v scheduled shiR until dismissed.
There s~:alJ be no duplication oF pay under the provisions of this section for the same hours
work~.
· LOS Court T~e Pay
4.06
4,.0'7.
OffiCe:.: required to at:end a Court or District .Justice hearing during off-du?' hours shall be
compe.'_~=ted at the rate or' one and one-half times their base hourly rate..All witness fees and. all
other ::..'n, uneration must be assi_~ned to the ~Jorough. Officers will be .~aaranteed not less ~han
t.~'~ ~.:urs work when a=ending Court, and not less than one and one-half hours work when
auendi.'..~ a District Justice hearing; If the time spent in Court or before a District Justice is less
than th: icspective guaranty, the o,~'iccr will report to the shift supervisor to work for :he balance
of the $?.ranteed time.
There si~_l! be no duplication or pyramiding of' an}' premium pa}' provided for under an}'
?ro~isi:.-. of'this AD'~ment for the s~me hours ~orked.
V:'.h~.-..~.~d throu~out this .~.~eemen:. the term "compensabie status" or "compensable leave
s:*.;u.<" .~f. all not include time spen~ on an unpaid lear.~ or ~i.-.,¢ spent b}' officers collecting
~'en~::.:.: under the Borough's short-term disabiliD' pro~m or long-term disabili~, pro,am, or
under .'..~y pro_cram provided by state law or Borough ordinance desired to provide
compe:'.s.~:ion for officers unable to work due to disabilir,.'.
ARTICLE V
Uniform .-~lowa nee
5.00 At the commencement of an o~cer's initial employment with the Borough, he or she shall be
' outfitted with the following uniform complcrn~nt:
.~ pain of pants
.~ long.sleeve shins
.~ short-sleeve shirts
I ~vinter coat (.~/4 oar lenDh)
I summer coat
1 pair shoes
1 raincoat
baseball hat
clOt.point bat
ties
dress belt
~ashlight
;air gloves
whistle and chain
holster
:urTcase
~n belt
.~mo pouch
5elt keeps
.~i~tstick ring
.-.-.mc:ag
Thermf:.,-:. ,,n ~.-.nual uniform allov, ance will be paid in one lump sum on or before March 1s' to each
officer a::ordir¥ :o the following schedule:
2001 $72 i/.vear
2002 $750/.vear
· 2003 S775/year
Thc Bc?c'.'gh :.~.~erves the right to discontifiue this ben,fit should it decide to proxide officers
uniforms. Ail ::.~'orm items purchased by the Borough fi.om the uniform replacement allowance d~ring
the .veer an offic:r terminates shall be mined in to the Chief of Police.
ARTICLE
6.00 Calendar Year
For both earning and use purposes, the calendar year will be used.
6.01 Entitlement
A. Vacation entitlement shall be earned according to the following schedule:
Hours ocr Annum DaR ncr Annum
1 to 3 Yenzs (inclusive)
4 to 5 Years (inclusive)
6 to 9 Years (inclusive)
I0 to 13 Years (inclusive)
14 to 16 Years (inclusive)
I .~ to 22 Years (Lnclusive)
:.: Years
Hours ncr Month
80 Hours 10 Days 6.66
96 Hours 12 Da~s 8.00
120 Hours 15 Days 10.00
144 Hours 18 Da.rs 12.00
160 Hours 20 Days 13.33
176 Hours 22 Days 14.66
200 Hours 25 Dn.xs 16.66
The "Hours per Month" entitlement is based upon a full month of compensable status.
Benefits will be prorated for less than a full month's service, based upon the amount of
compensable time in that month.
For vacation entitlement purposes, an offcer's len~h of service will be de~ermined on
J~-nua.9' I of each year by looking to the officer's next to be complet~ anniversar?' date.
6.02 Comoen~ation
Officers will be paid at their base hourly rate for each hour of approved vacation time used.
6.0.3 Scheduling
The n~ds of the Boroug. h must be considered first in the scheduling of vacations. Vacation time
will be used at a time approved by the Chief.
6.04 Termination
6.05
Upon ~oluntar?' termination of employment, offcers will be paid at their'base houri)' rate for all
earned but unused vacation time. provided appropriate notice is given in accordance with Article
XVII.
Vacation time shall be earhed on a month-to-month basis. With the approval of the Chief~. officers
ma.,,' be permit-ted to use vacation time up to the amount that will be earned in that calendar .,,'ear.
before that time when it is actually earned. I~. at the time of termination of employment, an
officer has used vacation time that has not been earned in that year, the officer shall be liable To
the Boroug. h for such vagation time. Deductions will be made by the Borough from the following
sources, listed by order of set-off, until the officer's obligation to the Borough is satisfied:
A. Any amount owed to the officer for earned but unused vacation time.
g. .-tn.~ amount owed to the officer for accumulated sick.leave in accordance with the terms
of'Section 8.0.5.
C. Any amount owed to the officer for longevity, pay.
D. Any wages due to the officer.
The officers authorize the Borough to make the necessar),, deductions 'from the sources listed
above.
6.06 Vacation Carry-Over
Each officer may carry, over from one calendar year to the next a maximum or' l0 days of
vacation. The Borou.~h Manager may ~ant more than I0 days carry over if' r~commended by the
Chief and the Association Bargaining Committee.
ARTICLe' VII
7.00 The following days shall be reco_m~ized as holidays:
New Year's Day (January lst) ~l~'t~ '7 ~
Martin Luther King Jr. Birthday (Janua~' 1 $)~:
Washin~on's BLrthday (3rd Monday in Februa~9 ~
Easter Sun~ay ~
~emorla[ Day (Last Monday in May) ~
Independence Day (July 4th) ~
Labor Day (First ~onday in September}~
Vetera~ Day ~ovember 1 l)~
Than~giving Day (Fourth Thursday in ~ovember)
C~stmas Eve (December 24~)
C~istmas Day (December 25th/
Holidays will be obse~'ed on the day upon which the holiday actually falls.
7.01
Officers will receive an additional day's pay in the pa.~check following the holiday, except for
those e~cers who are scheduled to work the holiday and who do not work. In addition to regular'
holiday pa.',', officers who work on a holiday 'specified in subsection 7.00 abo~e shall be.
comper~ated at the rate of one and one-half times their strai~t time rate for each hour so worked
up to ei~t hours and shall be compensated at the rate of two and one-haLf times their strai~t
time r=:e !'or each hour worked over eight hours on thai: assi~ed holiday shiR.
7.02
ir' a ho;5~:~y is obse~ed x~hile an officer is on compe.-.sable leave status other than sick leave, he
~ill re;-~ixe holida.~ ~.a? and the dab will not be charged aSainst hiszher compensable ieave. To be
eligibl.~ f~,r holida.~ pa?. the officer must work the las: regularly scheduled xxorking day before
and th: ~rst regular working da.~ at, er the holiday.
7.03
In addition to the above holida?s, on JanuaD' Ist of each )'ear. each officer on compensable status
will be entitled to five personal days off with pay. Personal days off must be used, it' at all, in the
)'ear in ~hich they are earned. Personal days earned, but not used, may not be accumulated 5om
year to .~ ear. Requests for personal days off must be ap:.':rox ed by the appropriate supe~'isor.
7.04
One and one quarter personal days %ill be earned on each or' the following dates. Janua.? I: April
l: Jui:. ',: and October I. Upon termination, an c."~cer v. ill be paid for any unus~ o.m. ed
personal days. In addition, the Borough ma5' subtract an amount from aa officer's final paycheck
for an:. unearned personal da.~ s.
ARTICLE V~I
Sick Leave
8.00
An officer who is prevented by his/her illness or accidental injury from performing his/her
regularly scheduled work shall receive his/her base hourly rate of pay for the number of hours
scheduled to work each day of abscnce, subject to the earnin~ and accumulation provisions of
this Article.
8.01 Full-tim*. officers on compensable status shall earn one day of sick leave per month of
emplo?m.ont up to a maximum of $7 days.
8.02 To be eligible for sick pay. the officer, personally, must get the approval of his/her appropriate
supervisor at least two hours prior to the commencement of his/her scheduled shift.
8.03
To be ,~iigible for sick pay, an officer absent due to illness or injury for three consecutive days or
longer must provide a doctor's certificate certS.lying the reason for the absence and
uncondkiona[ly releasing the officer to return to work. Such certificate must be presented.to the
supervis,,r prior to the officer being perrnirled to return to work. Conditional releases must be
appro~ e.J by the Chief and may be ~ounds for refusing to allow thc officer to return to work or to
continu.~ ~orking. For absences of less than three days, a physician's certificate ma.', be required
where tk.' Borough believes that the officer may be abusing his/her sick leave privileges.
8.0.1 .All sick !cave accumulated over 45 days will be paid to the officer at the officer's base hourly rate
of pay i.: December of each calendar .,,'ear.
8.0.~
Upon ;:;untaD resi~ation from employment, the Borough will pay the officer, at hisher base
houri:, r::e, for ali accumu!ate~ sick leave provide~ appropriate noric~ is given i~ accordance .
~/th .~:~e X~'H. Thee moneys ~ill be exciud~ Z~om the officers final earnings pension
caicu~2:' :n.
8.06 Upon r~-:irement, the officer will be paid. at his,Tier base hourly rate. for all accumulated sick
leave..-?.ese moneys will be excluded from the officers final earnings pension calculation.
8.07
Annual;;.. the Borough will place on reserve the equivalent of 4,4 sick days to be used as
.omer$.'::? sick le.~e b? members of the bargainln_~ unit who become ill and ~ho do not ha~t
:n> ~:m:d ~nd accumulated sick leave. Tim~ used sh=ll be deducted Dom the ~ot~l amount
~ail:~.: cn r:ser~t t~r tha~ yt~r. Unused sick leav~ on r~erve at the end of the y:~r ~i}! not b:
ca~ie~ c~er to the next year. The rese~'e will be administered by a comminee consisting of the
Polic~ ~Js~iation Bargaining Co~i~ and the Ch[el o~ Police. The Commlne~. by majori~'
vote. ~[H have the au[hori~' to determine when such emergency I~ve may be used and to define
the len~ of such leave. A d~ision o~ the Co~i~ ma5 not be challenged pursuant to the
~ieva~c: procure contain~ in Article XII of[his A~ment.
ARTICLE IX
Funeral L~ve
9.00 l:ull-tlme officers on ~ompens~blc stat~ ~y, wi~ ~e approval o~ ~e Chie~ be ~anted l~ve
' ~ pay for:
A, A five~ay I~ve for the d~th of a spo~ par~L child, brother, sister, stepparenL
stepchild, or ~andparent.
.~ t~-day leave for the death of a ~andchil~ mother-in-law, father-in-law, brother-in-
law, or s~ter-~-law.
ARTICLE X
I0.00
10.01
10.02
10.03
10.04
AS of January I, 2001, all off~cers will enroll in the CustomBlue health care plan, with the'
following schedule:
Office visit co-pay
Prescription drugs
S 15/visit
$10 generic
$15 brand name
$20 mail order (90-day)
The Borough of Carlisle will continue to provide health care coverage during the term of the
contract that is either the same or equivalent to the above outlined coverage. Equivalent does not
mean exactly the same. Equivalency will be measured by the overall value of the benefit. Any
change to the health care coverage, that meets the equivalency standard as outlined above, will be
~nher negotiated under the terms of Act 111 bargaining law which ma.,.' occur at an.'.' time during
the term of this contract at the request &the Borough.
The Borough ,*'ill continue the current pro,ams for short-term disabilis', long-term disabilir,.'.
and life insurance as in effect on December 31, 2000. The maximum life insurance benefit shall
be 550.000.
During the term of this Agr~ment. the Borough will pay to an insurance carrier of the Borough's
:.:-.oice. 56.90 per month, towards an indMdual and family vision pro,am, whi:i~ subs:amiall?
:onform$ to the pro,_z:am in existence on the effective date of this A~ment.
Dut'Ln_.5 :he terry.> of this Agreement. the Borough will pa.'.' 560.00 per r...onth to ~
L-,_s,..u'ance ca.,Tier of the Borough'$ choice towards an indMdual and f',.-rdly dental
k-,..sura,':ce progr'm, wi'rich substantially conforms to the progr~.-n in exi.~:ence on the
effective date of elis agreement. Any cost above 560.00 ,per month shall be the
responsibility of each police officer.
Officers on unpaid leave status ma5 be required to pa5' the total amount of ,~!1 insurance
premi=.-.s.
Officers who retir: ~tith a minimum age of 50 and have at least 25 ?ears of ser'.ice tincluding
militar:., buy back time) may elect to be covered by the CustomBlue health care pro,am. 75% of
.:he cos: will be paid by the Borough and 25% by the retired officer. Only those officers hired
prior to January 1. 2001 will be eligible for this benefit. After the retired officer reaches the age
of 65. the Borou~ will provide BC/BS 65 Special, or equivalent coverage, 75% of tl'~ monthly
premium cost will be paid by the Borough and 25% by the retired officer.
It' an. officer retir~ under the term of this contract and the ,retired officer becomes eligible for an>
other health care coverage that is either the same or equivalent, through employment or spousal
coverage, the retired officer will be dropped from the Borough's plan. Equivalent does not mean
e.xactly the same. Equivalency will be measured by the overall value of the benefit. Retired
I0.0~
10.06
10.0°
of~cers who are covered under a spouse's medical plan, will be allowed to re-em'oil in the
Borough's mod{cai coverage if the alternative health care coverage is no longer available to them.
subject to tile health care provider's enrollment eii~bili~ requirements.
If an officer chooses not to be covered by the Borough's health insurance policy at the time of
retirement, she/he will only be permitted to resume coverage upon losing access to altemafivd
primal' health care coverage. The retiree shall desigr~ate which coverage shall be considered to
be his or her primary, health care coverage at the time when he or she elects to not be covered
under the Borough's plan.
The Borough will provide COBRA (Consolidated Omnibus Budget R~oncilia:ion'} health
insurance coverage for spouses of' retiring officers (who meet the requirements of Section 10.04)
at ?5% of the total cost of'the premium to be paid by the Boroug. h.
The Borough will provide a $2500 annual buy-out for those officers current[y emplo.ved who
waive medical coverage and who have the same or similar health coverage elsewhere. Officers
who ~aive the Borou~'s medical coverage will only be peri,ed to resume coverage upon .
losing acc~s to ahe~afive primal' health care coverage. The o~c~r shal} desolate which
cov~rzg~ shall be considered to be his or her prima~ henkh care coverage at ~he time when he or
she *l~;:s ~o not be covered under the Borough's plan. Officers who clot to drop their health
coverage while employed with the Borou~ will still have the oppo~uni~' to re:~iv~ post
r~tEr:men{ health benefits at the time of retirement pursuant to those te~s contained within this
contract. O~cers will receive the ~2500 payment in December of each year ibr w~:n coverzg~
has b~:n waived. If an o~cer chooses :o r~sume coverag~ during the }ear. th~
paFm~: will be prorated according :o the time when BC/~S coverage was not provided.
The Bet:ugh may suspend the S2500 bu.'. out at any time during the term of the contrac:, penc;in.e.
no fi;m~e: officers ~'ill be pertained to e~oll in the 52500 bW our pro,am.
Office:.~ who are covered under a spouse's medical plan. w/il be allotted to re-enroll in the
Borou.~-.'s medical coverage if the alternative health care coverage is no longer a~ailab{e to them.
subjec: to the health care provider's enrollment eligibili~' requirements.
Mem~,e:.~ of the po[ice bargaining unit will be placed ahead of any other Borough ohlcers placed
on the :~'.iting list and according to,senioric,, in reiaSon to other members oi"the police b~:~ainin~
unit ,~c. are on the waiting Iisi.
The bargaining unit ~ill agree to negotiate during the term of the contract on alternatKe health
care proposals. If an a..D'eement can be reached on an alternative health care pro_m'a~ the
contract will be modified, reflecting the a~eed upon changes.
Those cfi3cers who retire under the provisions established in section { 1.04 of this A~ment
be entitled to participate in the Borough's C~uzomBlue pro,am v, hcre the Borough will pay' 25%
and the officer pays 75% of the premium cost until the'retiree reaches the age of 6~. After the
retired officer reaches the age of 65. the Borough will provide BC/BS 65 Special. or equivalent
coverage. 25% of the monthly premium to be paid by the Borou_mh and 75% to be paid by the
10.08
retired officer. Only those of~cers hired prior to January 1,200! will be eligible t'or this benefit.
The l~orou~h shall be allowed to e~tablish and post a list of' designated health care providers to be
used b.¥ a police officer who suffers a work related injury in accordance with thc Pennsylvania
Worker's Compensation Act. At a minimum, at least two general practitioners and two orthopedi?
speclalis~s will be on the list.
ARTICL£ XI
Retlremeot ...
11.00 During the term ofthi~ A~eement, the Borou~ will continue the present Police Pension Plan, as
amended.
11.01
At the time this A~eament is entered into, the officer rate of' contribution to the Police Pension
Fund shall 1% commencing January I, 2001 and continuing thereaRer for the duration of the
contract. The officer rate of' contribution to the Police Pension Fund shah be deducted from the
officer's pay each payday'. Pension contributions that each officer pays into the pension plan will
be deducted from ~nss salary which is defined as regular ~vages, overtime wages. ]ongeviD/. used
or paid compensator).' time and sick leave buy back which occurs on an annual basis. Gross salary
shall not include any lump sum payment that occurs at retirement, such as, but not limited to,
vacation buy back and sick leave reimbursement
11.02
At an)' time during the terms of this A_m'eement an actuarial study indicates that the contribution
from the State of Pennsylvania. (refunds of' the forei~ casuals' insurance tax). and officer'
contributions are insufficient to fund the level of benefits provided under the plan. 'the parties'
hereto .:~ee to re-open negotiations and. if necessary, to submit to binding arbitration the issue of.
percen:2ge ofsalar?' to be contributed to the Police Pension Fund by each officer.
11.0-,' The Police Pension Plan shall be amended to provide ali eHgib!e plan members retiring on or a~er
.!anuar:' I. 1995 with the follov.'ing service increment(s):
S50 per month for 26 ???'ears of service
550 per month for 27 ???'ears ot'se.'~i:e
11.0.4
The ..';c:iee pension ordinance shall be amended to per.-.,i: an earl) retirement benefit under the
follo'.'.!.'.g terms as authorized b.'. Act 24 of 1998:
The ea:ly retirement benefit shall be provided to a member of the police force with twen? or
more )ears of service who terminates employment prior to the completion of' superannuation
retirement age and senice requirements and who flies a wrinen application for an early
retirement benefit with Borough Council or other appropriate governing bud>'. The early
retirement benefit shall become efiSctive as of the date the application is flied ~ith Borough
CouncE or other appropriate governing bod.~, or the da:: ,~e:ignated on the application. ~hichever
is la:e:, and shall be the actuarial equivalent of a ..-a.niai superannuation retirement benefit
caicula:ed as folluv.'s:
a)
A partial superannuation retirement benefit shall be determined by applying the percentage
that the member's )'ears of service bear to the years of service that the member would have
rendered had the member continued to be employed until his superannuation retirement date
to ;he ~oss pension amount calculated using the monthly average ~oss compensation during
· the last thirD-six (36) months of employment.
b) The actuarial equivalent of the partial superannuation retirement benefit shall bc
11.05
11.06
determined by actuarially reducing the partial superannuation retirement benefit to reflect that
it ~ill commence on the effective date of thc early retirement rather than on the date on which
the member would have completed superannuation age and service requirements. The
actuarial reduction shall be calculated using the actuarial assumptions reported in the last
actuarial valuation' report filed with the Pubilc Employee Retirement Commission under the
act of December 18,1984 (P.L. 100:5, No.205), ~nown as the "Municipal Pension ?lan
Funding Standard and Recovery Act." (Amended December 1998).
During the term of agreement, if [t should become clear throu~ legislative enactment or a
decision of. the courts that the Borough has the authority to bargain over years of' service, percent
of' final pay, and eligible retirement age limits currently set forth in Act 600, the Police
Association may request, in writing, to reopen negotiations for the purpose of continuing to
bargain over these issues: Said negotiations may include binding arbitration in accordance with
Act 600 if necessary to resolve any issues in dispute.
Intervening and non-intervening military, service time shall be bought back provided that an
actuarial study shows the condition of the.Police Pension Fund is such that this benefit will not.
jeopardize the financial soundness of the Fund.
Grievance Proced~'re
ARTICLE
12.00 Procedure
A "grievance" under the terms of this collective bargaining agreement is defined as an alleged
violatic, r.. misinterpretation, qr misuppli~:ation of the terms and conditions of this .-~.~eement.
Should an officer have a grievance as defined above. ~n effort shall be made to resolve such
~ievanc: in the manner set forth in the steps below. An alleged grievance should, if at all
possible, be resolved at the lowest administrative level.
All gri.-vances and appeals must be submitted in writing and must cite the pan or par~ of the
contract in issue. Additionally. the ~ievance must state the relief requested.
Steo I
Subject to the time limitations contained in subs~-:tion 12.OI.B below, the g'ievant shall
:'.:rst submit his/her grievance to the Chief of Police and attempt to resolve i: at :hat level.
.-he Chief shall schedule a meeting with the g-i:vant to be held within five days of
notification to him b.~ the D'ievant that a ~ievance is being presented. Wrinen disposition
of the grievance wilI be given to. the _mqevant wi:bin five days.of this meeting with the
Chief.
Step 2
!fthe ~ievance is not resol',,:d :o the ~ievamms satisfaction in Step I. the .m'ievant ma)'
· Mthin three working days of the Step I decision 5orward the ~ievance to :5: Mayor for
,r.'iew. The Mayor will schedule a me,ting ~i:?. :he ~ievant to be he;d within seven
:ays a~er the Mayor's receipt of :he ~ievanc, ::,':inen disposition of the ~i,~ance will
:~ gben to the ~ievant within t~n da>s of his, Mr meeting with the Mayor.
Step3
~f the .m:ie'.'anoe is not resoh'ed to the grievant',: .~z:isfaction in Step 2. the ~'~evant ma)
'aithin five working days of the Step 2 d~isio..-, for~ard the grievance to a ~ie','ance
:.-'solution committee which shall consist of a member of the bargaining unit designated
D' the Association. the President of Borou~ Council or another member of Council so
~.-si~ated by the President. and the Borough Solicitor. The _re'Joyance c,-mmirtee will
:chedule a meeting v. ith the grievant to be held ,:,ithin ten days of Couneii Pr.-'sident'.~
r.'ceipt of the ~ievanc~. Written disposition of ti:.,- .re'Joyance will be given :: the ~ievam
':,ithin 20 days of his.'her megting ~iIh the comminee.
S.tep 4
:." the grievance is not resotved to the _.m'ievanfi .~.,tist'aetion in Step 3. the grievant ma>'.
':,ithin seven days of the ~ievance comminee's decision, request that th,~ .re'Joyance be
:ubmitted to arbitration. The arbitrator shall be chosen from a list of five arbitrators who
-re residents of Pent~ylvania submitted by the American Arbitration Ass~iation. Each
..'arty shall strike .names alternately from the list. commencing with the parE,.' seeking
.,rbitration. and the last arbitrator shall be borne equally by the Borough and the
Association, The arbitrator shall be confined to an interpretation of the terms of this
A~eement and he shall have no authority to add to. subtract from. or modir}..' in any wa}'.
zny of the provisions of this Agreement.
12.01 Limftstions
A. This Article shall not be applicabie it, under thc Borough's Civil Service Ordinance and,
Regulations, there are procedures available to the grievant to process his/her claim,
dispute, ot grievance. -.
B This article shall ~ot be applicable to claims under the Heart and Lung Act.
A grievance to be considered under this procedure must be initiated by the grievant
within 15 days of its occurrence or with 15 days after the grievant should reasonably be
expected to know of its occurrence.
Failure at any step of this procedure to communicate the decision on a ~ievance within.
the specified time limits shall constitute denial of the grievance, which shall permit the
grievant to proceed to the next step.
Failure at any step of' this procedure to appeal a grievance to the next step within thc
specified time limits shall he deemed tn he acceptance of' the decision rendered at that
step.
Failure of, thc grievant to appear at a scheduled meeting shall constitute abandonment
the grievance, proviGi~,g that writi¢l, notice has been ~ven to grievant as to the time and
place of the meeting.
12.02 The ~ievant must appear at all meeting~
12.05
All meetings under this procedure shall be held at a time specified by the representatives of the
Borough involved in the appropriat~ step. Even,.' eft'~:~ '.'.ill be made to schedule ~ievance
meetings during the grievant's non-working time. Howe,.er. in the event that a meeting is held
during the grievant's working hours, the Borou~ will not be req',ired to pay for time spent by the
grievant while at~ending such a meeting. "
12.04 Fo.r ms
Forms ."or filing ~ievances. serving notices, taking apreats, and other necessav: documents ~ill
be prepared by the Borou~ and given appropriate distribution so as to f,acilitate operation of the
~ievance procedure. Non-availabilir: of tbrms shall not excuse compliance xsith the provisions
hereof.
ARTICLE
Lo~eviw Pay
1.t.00 A lump-sum b~sc salary increment shall be paid on an officer's anniversary date in accordance
with the following schedule:
Years of Service [ncrem. en!
After I year
2 years
3 years
4 years
S years
6 years
? years
: years
9 years
10 years
l I years
12 years
13 years
14 yeats
15 v~ars
16 years
17 ', ears
1 $ years
19 years
20 v~ars
21 v~rs
22 ,'ears
23 years
24 years
25 years
26 years
27 ~ars
$ 100
200
300
400
500
600
700
800
900
1000
1100
1200
1300
1400
1500
1~00
t700
1800
1900
2000
2100
2200
2300 .
2400
2500
2600
2700
If an officer exceeds 27 years of service, Iongevi .ty payments will be capped at $2.700 per year.
Detect~'e'Increment
14.00
ARTICLE XIV
When ,, member of the Association is assi~ed Detective duties by the Chief of Police, he or she
shall r~eive extra pay at the rate of $?$0 payable January 15 of each year. This payment will be
prorat~ in the event that an officer's status as a Detective changes during the year.
Of~ceroln-Char~e Increment
I$.00
ARTICLE XV
When ~- member of the Association is desi~ated in writing as an Officer-In-Charge (OIC) by the
Chief' of Police, he or she shall receive extra pay at the rate of' $?50 payable January. 15 of' each
year. This payment will be prorated in the event that an officer's status as an OIC changes during
the year.
K-9 Increment
16.00
.4.RTICLE XVI
When .'- member of' the Association is desi~ated as the K-9 Officer by the Chief of Police. he-or
she shaiI be compensated at the Fair Labor Standards Act minimum wage with a minimum annual
ag~ega:e payment of' $300iy~ar.
.-~TICLE
Termination of' E motovment
17,00 Off-Sce:.~ shall give the Borough txvo w~ks written notice o~'resi.tmation..
ARTICLE
Ed-,-~tio.al Reimbursement
18.00 The Borough will sol aside $4000 each year for an Educational Reimbursement Fund to be
utilized in accordance with the provisions listed below.
18.01 The Borough will pay 50% of credit costs up to a maximum of $400 per officer per year for
tuition costs. The Borough will not pay for books or educational fees.
18.02 The Borough will only pay for courses taken on an officer's own time.
18.03
Courses must be approved by the Chief of Police. be work related, or be a course that is pan of
the overall degree requirement in an approved defoe pro.am. The degree being pursued must
also be work related. Reimbursement costs would cover high school, vocational-technical, home
stud)', college, and pos~-graduate work.
18.04 The Borough will reimburse the officer for educational course work aier receiving a proof of a
"C' .r.z:~. or better or a safisfactor?' certificate of completion.
18.05 Applic'-:ions will be accepted on a first-come, firs~-se~e basis.
18.06 .-kny number of courses may be taken by an offic.~r, but the Borough contribution :rill be limited
as set ~:nh above.
18.0,'..-\n? I:~ ~vcr dollars in the Educatiow, l Relmburstment Fund shall not be carried over ham one
)e',r :c :~.e next,
18.08 DCA .*i'.::ational pro.ams will not come under the s:ope or' this egucationa: r~imburse,'::ent '
pro~a.-..
ARTICLE XIX
Stress Counseffn~.
19.00 The Borou~ shall provide stress counseling for serious incidents as determined by the Chief or' '
Police with the counselor to be selected by the Boroug. h.
ARTICLE XX
Physical l~tness ~rnintenanee Pro=~ram
20.00 .In January of' 1991. the Borough implemented a physical fitness maintenance pro.am in
cooperation with the Carlisle Y~CA. Officers employed prior to January 1, 1990, while expected
to participate in the physical fitness proFam, shall not be disciplined for failure to meet an>'
specific physical fitness standard established by the proFam.
.-LRTI CLE XXI
3,leerings
21.00
Representatives of the collective bargaining unit shall meet xvith the Police Chief and Borough
.'~lanager or his/her desi~ec On a quarterly basis, i'f requested by either party, to discuss concem~
and iss,.'es thnt aff'~t members of'the bargaining unit.
ARTICLE xx'rl'
Seo:~r~biLJ~'
22.00
[z' an} ?rovision or portion ol" a provision of this .-',~.~ement or an.'.' application of' :his A~eem~n,.'
:o an.% ofricer or to the Borou~ is found to be contrary to =n.v s:atutes or ordinances.
?rovision or portion or' a provision of this A.~eement shall be d~med invalid and void, but
ot,~er v~.lid provisions or portions of provisions sh=H remain in full rotc:' and effect.
Totnli~ of A=~memen! :' - ' ' ...... ='~
~.00 The Borough and the. Association acknowledge that th~s Agreement represents :tl~¢ resttlts.;of'.
. :'-'i-!-' ": ,J: ';.:'~" .
specificall.v covered herein or wholl), omitted herewith .and irrsl~eCti~e' bf:',gh~h,'~: said '~'6bject-
w~ts mentioned or discussed during the ne~tiations preceding the execution ~f's'aid
EXHIBIT B
.243' 5252
~, ~ay 6, 2003
initiated.
goo~ 53 ~.. ,.
the ~ ¢~rliSw' ._., brio i'.",~ We m~u~',~ai~St yu,- - ,nduc~
Pen~y~ani~
procedure fo~ ...~
Co~S~]~c$ u~ ._. are ~ ~ ..0 a po,. ~t~
t~_, mcla~.. ..
a~n~/repr~em~
.:t ~7, ~'., ~:~,:,e PgF~oVm~.~~ '~ 'vmg
Stephen L. Mazgcson
Chief of Po{i~
Car/is& Police Do~ent
53 w~t South
C~liale. P~nsylvania 17013
717-243-5252
May 6, 2005
C~t I'hom~ Day
C~l~le Police D~tu'tment
M ~. $outtt Street
CarliMt, PA 17013
De~ CpL Day:
A~ you are aware an investigation into possible misconduct on your part was recently initiated.
I infarmedyou of this investigation when we met on May 5, 2003. I informedyou there was
the potential of disciplinary action being taken against you if the alleged misconduct was
This investigation has been completed. I have concluded that you did engage in ndsconduc~-
$,oecO'wally, I have determined that you committed the following offenses:
Conduct Unbecomin~ an Officer
Disobedience of Orders
The facts supporting this determination are as follows:
On April 27, 2003 at the Union Fire Company following a Police Association meeting, you
accused L& Barry Walters of the Carlisle Police Department of deleting or altering Metro.fries
(the official Carlisle Police Department computerized record system) in which his son
Matthew was enterea~ in effect removing the name of Matthew Walters from official
department records. You made this accusation to three (3) Carlisle Police Department patrol
The allegation that L~ Walters deleted or altered records or had any fde or record involving
his son deleted or altered was investigated and is totally unfounded.
By malting these accusations you accused La Walters of misconduct and possibly criminal
conduc& Such accusations to junior officers undermine L~ Walters, the Chain of Command
and is an assault on the character of Lt. Walters. This constitutes Conduct Unbecoming an
O~fwer.
Thomas Day
page 2 May 6, 2005
The same actions sup, oort a charge of Disobedience of Orders. When we met on April 24, 2003
I directedyou to use caution in whatyou said, howyou said it and whoyou said it to regarding
actions that may be taken against yot~ You were further advised, in writing, "that any
repetition of this behavior or other misconduct on your behalf will result in dismissaL"
Once again ! am extrem~ly disappointed that you would engage in such conduct, e~pecially
after our April 24~ 2005 meeting. Your actions on April 27, 2005 were again detrimental to the
good of the order of the police department and in fact disruptive to the ej~tcient operation of
the departmen~ Your actions continue to undermine the Chief of l¥1ice and Chain of
Comman~
A~ a result of my determination, I have recommended to Mayor Pfil$on that you be dismissed
from the Carlisle Police DepartmenL The Mayor supports my recommendation and will so
recommend to Borough Council.
In the event disc~linary action is taken against you, attached are portinent sections of the
Pennsylvania Borough Code and Carlisle Borough Civil Service Rule~ and Regulations. The
procedare for challenging disc~olinary action and the timeframe in which action must be
taken are included in thtse regulations.
Also, in the event disciplinary action other than dismissal i~ brought against you, you or your
attorney/repr~entotive are to coordinate with me prior to returning to work or the Carlisle
Poke Depanm~na
Sincerely,
Stephen I.. Margezon
Chief of Palice
SLM/sml
Mayor tVil~on
Fred Bean, Borough Manager
Lt. PfaM
Sgt. McCoy
Enclosure~
THE LAW OFFICES OF
JOSEPH D. BUCKLEY
1237 HOLLY PIKE
CARLISLE, PA 17013
TELEPHONE (717) 249-2448
FAX (71'/) 249-4103
May7,2003
Stephen L. Margeson
Ch/efofPolice
Carlisle Police Department
53 West South Street
Carlisle, PA 17013
Re: Corporal Tom Day
Dear ChiefMargeson:
Thank you for providing me the courtesy of attending your meeting this afternoon
with Corporal Day, Lieutenant Pfahl, Sergeant McCoy and yourself. As related to you I
had not had the opportunity to conduct my own investigation or even speak with Corporal
Day prior to the meeting, except for a few minutes on our ride from my office to the
station.
I have had the opportunity to speak in depth with Corporal Thomas Day, with
other officers, with the Data Center at the Harrisburg Police Deparmaent and to review
the letter you provided at the meeting and other documents. I am a bit pu~led and
believe that your action may have been premature and your requested discipline arbitrary
and capricious.
My investigative background has taught me that timelines are not only helpful,
but necessary in determining facts. I have determined the following:
Summer 2002 - One weekend, last summer Corporal Day was the night
supervisor. A call came into Carlisle police headquarters from Officer Mace that he had
spotted a motor vehicle known to have been owned and usually operated by one Mathew
Walters traveling at a high rate of speed down the Rimer Highway. Mathew Walters is
the son of Lieutenant Walters of the Carlisle Police Department. Officer Mace pursued
the vehicle, but it would not stop and later evaded Officer Mace. Upon Officer Mace
returning to the station Officer Mace, Deb Daniels, Officer Latshaw and Corporal Day
had a discussion about Mathew and his behavior. Corporal Day had never had any
problerus with the lad, but was told by the other officers and the dispatcher that Mathew
had been stopped or picked up on at least four occasions. (At our meeting Chief you
acknowledged that you knew of at least three occasions when Mathew had been stopped
Letter to ChiefMargeson
Page Two
or taken home by Carlisle Police officers. You also stated that you had knowledge that on
at least one occasion an unnamed Officer did delete Mathew Walters name from the
official records) One of the officers or the dispatcher checked thc Metro database to
verify the number of incidents in which Mathew Walters had been involved; however, the
database showed no information regarding Mathew. This puzzled the Officers, Daniels,
and later Officer Kurtz, who had specifically either entered data or provided data to
others for entry. They turned to the night supervisor, Corporal Day, who assured those
concerned that he would check into the matter of data not reaching the system or being
changed.
During his next day duty, Corporal Day brought the matter and his concerns to the
attention of Lieutenant Pfahl. He explained what had occurred during his watch and the
matter of Mathew Walters and the data which was reported missing from the Metro
system. Lieutenant Pfahl told Corporal Day that there were only two people who had the
authority to change files, himself and Lieutenant Walters. Lieutenant Pfahl then
specifically stated that "I have not made any changes," emphasizing "I". Corporal Day
requested the matter be reviewed. Corporal Day received no follow-up from his chain of
command regarding this matter.
EXHIBIT C
Letter to Chief Margeson
Page Three
On January 18, 2003 while on patrol near Rod's Roadhouse, Corporal Day was
corrfi-onted by a very upset woman. She was screaming at him saying that the Carlisle
Police depa~-hhent is corrupt. She said that during a domestic dispute her former
boyfriend, Detective Smith had placed the barrel of his service revolver against her
temple and threatened her life. That the matter was reported to police authorities and
nothing was done. She also claimed that she personally had gone to you Chief Margeson
and reported the incident and still nothing was done. (Corporal Day was aware that
Detect/ve Smith had been involved w/th the woman a few years before th/s incident. The
woman was then a minor and that there had been an incident with her, Detective Smith
and another Borough Official at a local tavern which possibly involved supply/ng alcohol
to a minor.) Either later that morning or the next day, Corporal Day mentioned the
incident to Sergeant Guido and the allegations made by the woman. Corporal Day
suggested that it was something that had allegedly happened a few years ago, was water
over the dam and he d/d not w/sh to have the matter pursued. However, Corporal Day
also related to Guido that he had received other recent allegations against Detective
Smith: one involving the return of money missing from an evidence locker, the other
relating to working private security during his scheduled duty hours. The former incident
had been related to him from Lieutenant Pfahl, and the latter from Corporal Klepper and
Detective Kurtz. A few days later Sergeant Guido requested Corporal Day write the
matter up as an official report. A few days later after he had not written the report,
Corporal Day was officially ordered by you Ch/el Margeson, through Sargeant Guido to
writo a report on the allegations. Corporal Day wrote up the allegations as given to him
by others and gave the report as directed to Sargeant Guido. Corporal Day was not
conducted regarding this matter for a period of two months. The matter was later
allegedly investigated and dismissed, but upon checking, certain key wilnesses were not
even contacted.
In late January or early February, 2003 during a change in shifts from nights to
days, Sergeant Guido initiated a conversation with Corporal Day at the station. This was
an average daily chat. Also present were Officer John Haggerty and Robin Burns, a
dispatcher. Sergeant Guido informed the group that the daylight Detectives needed to
held accountable for their time out of the office. He stated that he was going to bring
them in line. Corporal Day laughed and did in his regular booming, deep voice say,
"You've got to be kidding. Jill files a complaint that Smitty held a gun to her head you
order mc to write it up and nothing is done about that and you expect that they arc going
to do anything to Egolf and Nestor." Guido asked what he meant and Corporal Day
responded that Guido knew what he meant, the report he'd been ordered to write on
Detective Smith and the allegations regarding the use of the gun, repayment of money
and working at the Water Company while on duty. Corporal Day again asked Sergeant
Guido what had become of the report and the investigation? Corporal Day questioned
whether Detective Smith had a protector in the borough. The conversation then turned to
other matters.
Letter to Chief Margeson
Page Four
Three days later Sergeant Guido spoke privately to Corporal Day and suggested
that they had been wrong having the conversation about the detectives in front of Robin
Bums.
On February 25, 2003 Corporal Day wrote a report to Sergeant Guido regarding
Detective Smith's failure to respond to a burglar alarm call after being dispatched and
having advised others that he was so responding, but did not. Later Corporal Day showed
Guido certain entries Detective Smith had made in the official records showing he was at
the scene when he was not. Corporal Day received no follow-up regarding th/s report.
The first week of March 2003 Corporal Day was questioned by Lieutenant Pfahl
who needed the telephone number of the woman who in January had made allegations
regarding Detective Smith and the Chief.
The second or th/rd week in March, but prior to March 25, 2003, Corporal Day
along with the three other elected members of the police union delivered a list of 30-40
new demands for the up-coming contract to the Borough Manager.
On March 28, 2003 Corporal Day was called into the Chief's office and told that
he was under investigation for alleged statements he had made to Sergeant Guido in front
of Officer Haggerty and Robin Burns. Corporal Day was puzzled. He told you that he had
written the report on your direct order. He was also concerned because as he said no one
even started looking into the matter until recently. Corporal Day explained the
conversation and stated that he never said that he knew if anything was ever done by
Detective Smith, except that he had personal knowledge that Smith had not responded to
a BA (the February 25, 2003 incident). The rest of the statements had been allegations by
others. He admitted that there was a conversation, but it was initiated by his superior. He
made no claim that any particular person was coveting anything up, only that the report
was requested to be written on your order, that it was written, that time had past and
nothing was being done or had not been done. The cover-up allegation had been made by
Detective Smith's former lover, not Corporal Day.
April 24, 2003 Corporal Day receives a letter stating that you had personally
investigated the matter of him speaking with Sergeant Guido in front of subordinates. It
related to a report of allegations which he had reported to Guido in early .l'anuary at your
direction. You concluded that Corporal Day "in essence made criminal and misconduct
allegations against Detective Smith, then accused the Chief of Police, Lt. Walters and
Detective Nestor of miscunduct by knowingly covering it up." Your letter says that you
are requesting he be demoted in rank and suspended. Corporal Day was placed on
admin/strative leave.
(At no time has Corporal Day alleged anyone has covered up anything, even
though the evidence may be pointing that direction. He is not charged with investigating
anything. Allegations were made by others and properly reported IN WRITING IN
JANUARY 2003. NOTHING WAS DONE.)
Letter to Chief Margeson
Page Five
April 27, 2003, IVlr. Day attends a union meeting as its Treasurer and elected
union Board member. Mr. Day, as a union member, requested that the membership
provide him with funds to hire an attorney to fight what he believes to be the unfounded
charges in your April 24, 2003 letter. When questioned what was he talking about, he, as
a union member, informed the members present of the charges you have levied. They
were dumbfounded. At~er a discussion the matter was tabled until aider action by the
Bomngh Council. Following the meeting many members were questioning Mr. Day
regarding your April 24 actions and asking why the union should be involved. Mr. Day,
as their union representative, told them that it puzzled him that the management of the
deparhnent would devote such time and effort to coming at~er him on the heals of the
union's recent demands for the new contract for which he was a driving force. He, as a
union representative, said that you and other management personal were attempting to
railroad him for something you directed him to write. He told them he couldn't
understand why you would spend more time investigating what he said to others than you
would investigating the underlying wrongdoings which were potentially criminal in
nature. He told them, as union representative, that months ago a report on possible
intentional deletion or omission of Lt. Walters son's numerous incidents had not even
been reviewed. He told them, as a union member and union leader, that if the rank and
file police officers follow procedure and report allegations of possible wrong doing of
management, who will support members when matters are not investigated? He also
asked that if we do report supervisors and they retaliate who will support members? He
also stated that if they management attempts to remove union representatives through
trumped up charges who will support members.
May $, 2003 you informed Corporal Day that you were investing him for possible
misconduct for statements he may have made at the union meeting regarding Lieutenant
Walters and the deletion of files. Corporal Day explained that he had reported this matter
to Lieutenant Pfahl many months ago. As he believes nothing was ever investigated and
now he is being blamed for someone's failure to act.
On May 6, 2003 we met in your office. You presented Corporal Day with a letter
alleging he had accused Lt. Walters of misconduct at a union meeting. You told me that
you had investigated the matter and had found that someone, not Corporal Day, had
deleted information regarding Mathew Walters from the records. You also admitted that
Mathew Walters had been involved in several reported incidents but no record of them
were found under his name in the data system. Following our meeting today I spoke with
Bob Morrison who heads the data center for the Harrisburg Police Department . I
understand that he is the guru of the Mel~'o Data System. I wanted some general
information regarding the system. As I began my inquiry he asked if this involved a
matter at the Carlisle Police Department. He told me that he first received a call fxom the
Carlisle Police regarding this very matter only in the last day and he had given a
preliminary report to you as Chief of Police. He also stated that you had requested that he
reword his report which he would be doing tomorrow and that I should contact you for a
copy.
Letter to Chief Margeson
Page Six
As I initially stated, I believe you may have acted prematurely. Fhst of all you are
attempting to discipline Corporal Day for discussion of allegations which had been made
by others to him in his official capacity as a police officer, which had been duly reported
as required by department policy, and which were not investigated as required. These
discussions only took place after nothing had been done by his superiors. Is it not those
charged with investigating the matter who should be disciplined for failing to act or to act
promptly? Also who is doing the investigating? If a person has allegedly committed a
wrong, it is proper to have that person investigate himselO From the alleged statements
made by others to Corporal Day and reported, you, a Lieutenant, a Sergeant, a Corporal
and a Detective may have had some involvement. Who did the investigating? Would it
not be better to have an independent party first review the allegations.
Mr. Day's statements at a union meeting regarding the Mathew Walters issue
have been twisted and taken out of context. His statements to union members in his
capacity as a union member or board member are protected by federal and state laws.
I have spoken to several members of the department who state that Corporal Day
is one of the most fair and honest officers on the force. He has had an unblemished 15
years of service and his evaluations support this position. When he sees something
wrong, inside or out side the depamnent he does that which is required by law and policy.
Never has he gone public with any information. He believes he has been targeted not only
because of his recent election as a union representative, but also because of his inquiry
into the Mathew Walters matter and his reports on Detective Smith, Sergeant Guido and
Corporal Hogarth. It appears that certain persons within the department and/or their
family members do or have received preferential treatment. It further appears that certain
persons are retaliating directly or indirectly for Corporal Day's reporting that which he
has sworn to do. Finally, assuming arguendo, even if he had let slip that there was an
investigation, the requested punishment far exceeds the alleged wrongdoing. We are
requesting that you reverse your position and reinstate Corporal Day to his full rank as
soon as possible. Thank you.
Very sincerely yours,
JDB/razf
Cc:
$oseph D. Bucldey, Esquire
Mayor Wilson
Fred Bean, Borough Manager
Lt. Pfahl
Sgt, McCoy
HAND DELIVERED
EXHIBIT D
May 9, 2003
BOROUGH OF CARLISLE
"Committed To Excellence In Community Service"
Corporal Thomas L. Day, Jr.
845 Baltimore Pike
Gardners, PA 17324
VI& HAND DELIVERY
Dear Corporal Da~.
You are advised that the Carlisle Borough Council, in the presence of your legal ceunnel, and
by motion duly made and seconded during a public meeting held on Thursday, May 8, 2003,
unanimously voted to dismiss you from the Carlisle Police Department. As cause for
dismissal, the Borough Council adopted and concurred with the charges outlined in the letter
to you from Chief Margeeon, dated May 6, 2003; a copy of that.letter is attached and
incorporated heroin by reference. At that meeting, Mayor Wilson indicated his concurrence
in the charges outlined, and conveyed his recommendation for dismissal, Spedfically, the
Borough Council has determined that you engaged in conduct unbecoming an OffiCer and that
you disobeyed orders.
You have the right to appeal your dismissal to the Carlisle Borough Civil Servico
Commission under applicable provisions of the Pennsylvania Borough Code, the Cede of the
Borough of Carlisle, and the Rules and Regulations of the Carlisle Borough Civil Service
Commission. Pllrsuant to Rule 903 of the Rules and Regulations of the Carlisle Borough
Civil Service Commission, your appeal must be filed within ten (10) days of your receipt to
make such appeal, it should be timely filed with Mr. Ben Francavilla, Chairman, at his
address of 1315 Georgetown Circle, Carlisle, Pennsylvania 17013 and copy to Mr. Fredrick
M. Bean, Carlisle Borough Manager, 53 West South Street, Carlisle, Pennsylvnnla 17013.
You may be entitled to certain accrued employment benefits as a result of your service to the
Borough. You should contact Karen Volz, Personnel-Risk Manager, 53 West ~outh Street,
Carlisle, Pe~sylvania 17013, to apply for those benefits. ' '
Sincerely,
Council Vice-President
C: Solicitor Edward Sehorpp ~'
Manager Frsdrick Bean
Polico Chief Margeson
Personnel-Risk Manager Karen Volz
COIPY
Enclosure
FMlYsda
0509.1
53 West South Street, Carlisle, PA 17013 Tel. (717) 249-4422; Fax (717) 249-2932
EXHIBIT E
Cpl. Thomas L, Day, Ji'.
845 Baltimore Pike
Gardners, PA 17324
May 19, 2003
Chief Stephen L. Made,on
Carlisle Poli~e Deparlm~nt
53 West So,th Street
Carlisle, PA 17013.;
Chief Marge~on, :
In aocordanoewith Article Xll of the Collective Bargaining Agreement between
the Borough of Carlisle and the Carlisle Borough Police Association, I am filing the
following grievance for the reasons stated below:
A grievance is defined by 12.00 as 'an alleged ~ rnisinterpret~tiQn Qr
misapplication of the terms and conditions of this Agreement.' (emphasis added)
Article I, 1.00 of the Agreement states, in part, 'It is the purpose of this
Agreement... to insure true collective bargaining as outlined in Section 1 and 2 of Article
III of 1968... This Agreement shall apply uniformly to all police officers who are
members of the bargaining unit."
The Agreement does state, in part, in Article III - "The Borough retains all rights
not sl~ecifically modified by the terms of the Agreement which rights shall include
..,the,.. discharge of policemen...,"
My grievance is that I have been disciplined and discharged for the exercise of
free speech at a Police Association meeting, Although I deny the alleged statements
attributed to me, any statements made at the association meeting, while at the meeting
location, and made in reference to matters discussed at the meeting, are privileged. To
discipline and/or discharge me violates the purpose of the Agreement and its very
purpose. To permit management to discipline association members from the free
exercise of speech and the free exchange of ideas as they relate to the bargaining unit
and the agreement, violates the agreement. Please contact me once you have
scheduled a meeting to discuss this, which must be accomplished in 5 days.
Sincerely,
/~pl. Thomas L. Day, Jr.
Cc: ~oseph D. Buotdey, Esquire
Gary M. Lightman, Esquire
EXHIBIT F
Stephen L. Margeson
Chief of Police
Carlisle Police Deponent
53 West South S~eet
Cglisle, Pennsylvania 17013
M~MO~D~
717-243-5252
R~
Thomas L. Day, Jr.
May 23, 2OO3
Grievance Correspondence Dated May 19, 2003
On May 21, 2003, 1 received the referenced correspondence from you. Please be advised that
the Grievance has been denied for the following reasons.
The Co/iect/~ Bargaining Agreement specifies the matters that can be protested through the
Grievance Arbitration Procedure. The ability to protest discipline is not one of the specified
items. Through past practice, the parties (Carlisle Borough and the Police Association) have
negotiated over the ability for an officer to protest diseipline. Thie past practice is part of the
Collective Bargaining Agreement. The practice is to utilize the Civil Service Procedure of the
Borough Code to give Police Officers, who have been subject to discipline, a process for
challenging that discipline. You have availed yourself to that past practice (Civil Service
Commission Hearing) and have no other route under the Collective Bargaining Agreement to
challenge your discipline.
Sincerely,
Stephen L. Margeson, Chief of Police
Carlisle Borough Police Department
C: Mayor Kirk Wilson
Manager Fred Bean
S~ Ifenton M¢Co~
Joseph B~Je2ey, Esquire
Edward Scharpp, Esquire
FMB I sda
0523.2
EXHIBIT G
Cpl. Thomas L. Day, Jr.
845 Baltimore Pike
Gardners, PA 17324
May 27, 2003
Kirk Wilson, Mayor
Office of the Mayor
Borough of Carlisle
53 West South Street
Carlisle, PA 17013
Mayor Wilson,
In accordance with Article XII of the Collective Bargaining Agreement between
the Borough of Carlisle and the Cadisle Borough Police Association, I am writing to you
in accordance with Step 2 of the grievance procedure. On May 19, I sent a letter to the
Chief under Step I requesting a meeting and received the enclosed letter today. I had
hoped under the grievance procedure I would be reinstated for the reasons set forth in
the letter and set them out here again:
A grievance is defined by 12.00 as "an alleged ~, misinterpretation or
misapplication of the terms and conditions of this Agreement." (emphasis added)
Article I, 1.00 of the Agreement states, in part, "It is the purpose of this
Agreement... to insure true collective bargaining as outlined in Section 1 and 2 of Article
III of 1968... This Agreement shall apply uniformly to all police officers who are
members of the bargaining unit."
The Agreement does state, in part, in Article III - "The Borough retains all dghts
not specifically modified by the terms of the Agreement which rights shall include
...the... discharge of policemen...,"
My grievance is that I have been disciplined and discharged for the exercise of
free speech at a Police Association meeting. Although I deny the alleged statements
attributed to me, any statements made at the association meeting, while at the meeting
location, and made in reference to matters discussed at the meeting, are privileged. To
discipline and/or discharge me violates the purpose of the Agreement and its very
purpose. To permit management to discipline association members from the free
exercise of speech and the free exchange of ideas as they relate to the bargaining unit
and the agreement, violates the agreement. Please contact me once you have
scheduled a meeting to discuss this, which under step 2 is to be held within 7 days.
Sincerely,
Cc:
Joseph D. Buckley, Esquire
Gary M. Lightman, Esquire
Cpi. Thomas L. Day, Jr.
EXHIBIT H
June 2, 2003
Mr. Thomas L. Day, Jr.
845 Baltimoro Piko
Garden:rs, PA 17324
RE: Grievanc~ Correspondence Dated May 27, 2003
Dear Mr. Day:
I submit the following rcsponse to your May 27, 2003 letter. The position of the Borough
of Carlisle and the Mayor is exactly as the position stated by Chief Margeson in his
correspondence to you dated May 23, 2003. You arc free to take the position that your
Oricvancc will be denied through cvcry step of thc CJricvancc Procedure, short of
Arbitration. If your Union agrees to process your Grievance to Arbitration, the Borough
will defend itself on both procedural and substantiative grounds. Procedurally, as already
cxplaincd, it is the position of thc Borough that your sole route for challenging your
dismissal is an appeal to thc Civil Service Commission.
Sincerely,
Kirk R. Wilson
Mayor of Carlisle
C: Carlisle Borough Council
Managm' Fred Bean
Strut Kcnton bfcCoy
Solicitor Edward Schorpp
Joseph D. Buckley, F.~quir~
o6oz
EXHIBIT I
Cpl. Thomas L. Day, Jr.
845 Baltimore Pike
Gardners, PA 17324
June 9,2003
Staven J. Fishman, Esquire
President, Borough Council
Borough of Cadisle
53 West South Street
Carlisle, PA 17013
Dear Mr. Fishman:
In accordance with Article Xl[ of the Collective Bargaining Agreement between
the Borough of Carlisle and the Carlisle Borough Police Association, I am wdting to you
in accordance with Step 3 of the grievance procedure. On May 27, I sent a letter to the
Mayor under Step 2 requesting a meeting and received the enclosed letter today. I had
hoped under the grievance procedure I would be reinstated for the reasons set forth in
the letter and set them out here again:
A grievance is defined by 12.00 as "an alleged ~, misinterpretation or
misapplication of the terms and conditions of this Agreement." (emphasis added)
Article 1, 1.00 of the Agreement states, in part, "It is the purpose of this
Agreement... to insure true collective bargaining as outlined in Section 1 and 2 of Article
III of 1968... This Agreement shall apply uniformly to all police officers who are
members of the bargaining unit."
The Agreement does state, in part, in Article III - "The Borough retains all rights
not specifically modified by the terms of the Agreement which rights shall include
...the... discharge of policemen...,"
My grievance is that I have been disciplined and discharged for the exercise of
free speech at a Police Association meeting. Although I deny the alleged statements
attributed to me, any statements made at the association meeting, while at the meeting
location, and made in reference to matters discussed at the meeting, are privileged. To
discipline and/or discharge me violates the purpose of the Agreement and its very
purpose. To permit management to discipline association members from the free
exercise of speech and the free exchange of ideas as they relate to the bargaining unit
and the agreement, violates the agreement. Please contact me once you have
scheduled a meeting with the grievance resolution committee to discuss this, which
under step 3 will be scheduled within 10 days of receipt of this request. Thank you.
Very sincerely yours,
Cc: '\~oseph D. Buckley, Esquire
Gary M. Lightman, Esquire
Cpi. Thomas L. Day, Jr.
THOMAS L. DAY, JR.
Petitioner
BOROUGH OF CARLISLE
Respondent
: 1N THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: No. 03-4258 CIVIL TERM
:
: CIVIL ACTION - EQUITY
IMPORTANT NOTICE
You have been sued in court. If you wish to defend against the claims set forth in the
following pages, you must take action within twenty days (20) days after this complaint
and notice are served, by entering a written appearance personally or by attorney and
filing in writing with the court your defenses or objections to the claims set forth against
you. You are warned that if you fail to do so the case may proceed without you by the
court without further notice for any money claimed in the complaint or for any other
claim or relief requested by the plaintiff. You may lose money or property or other rights
important to you.
YOU SHOULD TAKE THIS pAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE
THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL
HELP. Cumberland County Bar Association
32 S. Bedford Street
Carlisle, PA 17013-3302
(717) 249-3166
THOMAS L. DAY, JR.,
PLAINTIFF
//~OROUGH OF CARLISLE,
DEFENDANT
· IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
· 03-4258 CIVIL TERM
ORDER OF COURT
AND NOW, this "~;~ day of August, 2003, the motion of plaintiff for
the entry of a Rule to show cause against defendant, or for a hearing on the complaint
in mandamus filed on A.ugust 28, 2003, IS DENIED.~
Edgar B. Bayley, J.
oseph D. Buckley, Esquire
F~o~r °~laintiff
:sal
0c/.o3-o
~ Pa. Rule of Civil Procedure 1091 provides that "the action of mandamus shall be
in accordance with the rules relating to a civil action." The complaint has not
been served much less are the pleadings closed. A Rule to show cause is not
warranted, and the case is not at issue for setting a date for trial.
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
THOMAS L. DAY, JR.,
Plaintiff
VS.
BOROUGH OF CARLISLE,
Defendant.
NOTICE TO PLEAD
TO: Joseph D. Buckley, Esquire
You are hereby notified to file a
written response to the enclosed Preliminary
Objections to Plaintiff's Complaint in Equity
within twenty (20) days from service hereof
or a iudgmen_t may be entered against you.
Robert E. Durrant, Esquire
Gretchen K. Love, Esquire
Attorneys for Defendant
Borough of Carlisle
No. 03-4258
PRELIMINARY OBJECTIONS TO
PLAINTIFF'S COMPLAINT IN
EQUITY
Filed on behalf of Defendant,
Borough of Carlisle
Counsel of Record for this Party:
ROBERT E. DURRANT, ESQUIRE
Pa. I.D. # 21717
GRETCHEN K. LOVE, ESQUIRE
Pa. I.D. #84.890
CAMPBELL, DURRANT & BEATTY
555 Grant Street, Suite 120
Pittsburgh, PA 15219
Telephone No.: (412) 395-1280
{S:\WORLDOX\Clients\cb2~279(6)\00027262.DOC}
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY~
PENNSYLVANIA
THOMAS L. DAY, JR.,
Plaintiff,
VS.
BOROUGH OF CARLISLE,
Defendant
No. 03-4258
PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT IN EQUITY
AND NOW comes the Defendant, Borough of Carlisle, by and through its counsel,
Campbell, Dun'ant & Beatty, P.C. and files the within Preliminary Objections to the Complaint
in Equity and in support thereof avers as follows:
1. Thomas L. Day, Jr. (hereinafter "Plaintiff") was employed as a police officer for
the Borough of Carlisle until May 8, 2003 when the Borough Council terminated his
employment for violations of Borough's policies regarding unbecoming conduct and
insubordination. [Complaint ¶ 34.]
2. Borough Council's action were based upon hSe recommendations of Borough
Mayor Kirk R. Wilson and the Chief of Police, Stephen L. Margeson. [Complaint Exhibit D.]
3. On May 9, 2003, Borough Council notified Plaintiff via a hand delivered letter
that he was being terminated and that he had a right to appeal his termination to the Carlisle
Borough Civil Service Commission. [Complaint Exhibit D.]
4. That same day, Plaintiff filed an appeal with the Civil Service Commission.
[Complaint ¶ 35.]
{S:\WORLDOX\Clients\cb2X279(6)\00027262.DOC}
5. On May 19, 2003, Plaintiff additionally filed a grievance challenging the validity
of his termination through a contractual grievance procedure contained in the collective
bargaining agreement between the Borough of Carlisle and the Carlisle Police Association
(hereinafter "Union"). [Complaint ¶ 36.]
6. Plaintiff's grievance was denied by Chief Margeson and then by Mayor Wilson.
In denying the grievance, both officials notified Plaintiff that the collective bargaining agreement
between the Borough and the Union, and a relevant past practice between the parties, did not
permit the processing of disciplinary matters through the grievance procedure. [Complaint ¶ ¶
36-38. Attachment A.]
7. Plaintiff is thoroughly familiar with the collective bargaining agreement
(hereinafter "CBA") between the Borough of Carlisle and the Union. This is because Plaintiff
has, from time-to-time, been a member of the police union colle, ctive bargaining team.
8. In particular, Plaintiff is aware of CBA sub-section 12.0lA of Article XII. This
Article details the "Grievance Procedure" negotiated between the parties to the CBA. Sub-
section 12.0lA of that CBA states, in its entirety:
This Article shall not be applicable if, under the Borough's Civil
Service Ordinance and Regulations, there are procedures available
to the grievant to process his/her claim, dispute, or grievance.
9. The Borough's Civil Service Ordinance and Regulations implements civil service
provisions which parallel the civil service provisions of the Borough Code. Carlisle Borough
operates/functions pursuant to the Borough Code. 53 P.S. § 45101 et seq.
10. The Borough Code, particularly in its civil service provisions, provides
procedures which may be used by a Borough police officer to contest his dismissal from
{ S:\WORLDOXXClients\cb2X279(6)\00027262.DOC } 3
employment. 53 P.S. § 46190-46191. In fact, the Plaintiff has utilized those procedures to
challenge his "removal."
I1. While Plaintiff's grievance is plainly frivolous., the Borough has not refused to
arbitrate it. To the contrary, the Borough has stated, in writing, to Plaintiff that if the Union
processes the grievance to arbitration, the Borough will participate in the arbitration and will
make its arbitrability arguments to the neutral arbitrator. See attached grievance response of
Mayor Wilson. [Attachment B.]
12. On August 29, 2003, Plaintiff filed a mandamus action in equity demanding that
the Defendant Borough of Carlisle convene a grievance msotution committee pursuant to the
contractual procedures contained in the collective bargaining agreement between the Borough
and the Union.
Plaintiff has Failed to Exhaust a Statutory Remedy
13. Pennsylvania Rule of Civil Procedure 1509 specifically authorizes preliminary
objections for equity actions and provides that any party may preliminarily object to an action in
equity for failing "to exercise or exhaust a statutory remedy."
14. A preliminary objection for failure to exercise or exhaust a statutory remedy is a
challenge to the power of either side of the court to hear the action because there is an exclusive
statutory remedy provided. Lache v. Northern York County School District, 52 Pa. Commw.
541,545,417 A.2d 260, 262 (1980).
15. If a preliminary objection pursuant to 1509(b) is sustained, the result is to send the
matter through the statutory prescribed route. Id., citing, West Homestead Borough School
District v. Allegheny County Board of School Directors, 440 Pa.. 113,269 A.2d 904 (1970).
{S:XWORLDOX\Clients~cb2~279(6)\00027262.DOC } 4
16. It is well settled that "where the Legislature provides a statutory remedy, which is
mandatory and exclusive, equity is without power to act." DeLuca v. Buckeye Coal Co., 463 Pa.
513,519, 345 A.2d 637, 640 (1975).
17. Similarly, where an administrative remedy is statutofily prescribed, the general
rule is that a court, be it a court of equity or a court of law, is without jurisdiction to entertain the
action. Cohen v. Temple University~ 299 Pa. Super. 124, 129, 445 A.2d 179, 182 (1982), citing,
Lilian v. Commonwealth, 467 Pa. 15, 18,354 A.2d 250, 252 (1976).
18. Act 111 has been interpreted as mandating both interest and grievance
arbitration. Pottstown Police Officer's Association v. PLRB, 160 Pa. Conunw. 87, 90, 634 A.2d
711,712 (1993); Township of Moon v. Police Officers of the 'Township of Moon, 508 Pa. 495,
498 A.2d 1305 (1985). Through the mechanism of collective bargaining, Carlisle Borough and
the Union certified by the Pennsylvania Labor Relations Board to represent the non-managerial
police officers employed by the Borough have agreed to use the Carlisle Borough Civil Service
Commission as their neutral arbitrator to resolve grievances involving discipline.
19. Even if the parties to the CBA had not negofialed the civil service portion of the
Borough Code into their CBA the Plaintiff has independent of any agreement between the
Borough and the Union, the statutory remedy provided by the Borough Code. 53 P.S. § 101 et
seq. The Borough Code provides that employees who are suspended, removed, or reduced in
rank shall demand a hearing by the commission. 53 P.S. § 46190-46191.
20. The Legislature by choosing the term "shall" specifically provided that an
aggrieved employee who is suspended, removed, or reduced in ]rank and who desires to challenge
that act must pursue the matter through the civil service commission. The term "shall" is not to
be misconstrued with "may" which is permissive; "shall" is mandatory.
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21. Based on the remedies available under Act 111 and the Borough Code, this court
lacks jurisdiction to hear the instant matter. The Legislature has specifically abrogated the
jurisdiction of this court by requiring that disputes of this nature be resolved by the processes
which have been statutorily created.
22. Significantly, Plaintiff has already preserved his individual right of appeal to the
Borough Civil Service Commission, and the Borough has acknowledged its duty to arbitrate his
grievance if the Union appeals that grievance to arbitration. 'While the Plaintiff has a personal
right to appeal his discipline to the Civil Service Commission only the Union may process a
grievance to arbitration.) Accordingly, Plaintiff's complaint should be dismissed because he has
failed to exhaust these statutory remedies.
WHEREFORE, Defendant Borough of Carlisle respectfully requests that this Court grant
Defendant's preliminary objections and dismiss Plaintiff's Complaint in equity.
Plaintiff has an Adequate Non-Statutory Remedy at Law
23. Alternatively, Plaintiff's complaint in equity is improper because Plaintiff has an
adequate remedy at law. Where a legal remedy exists, a court is divested of equity jurisdiction.
Pentlong Corporation v. GLS Capital, Inc., 2003 Pa. LEXIS 383,820 A.2d 1240, 1245 (2003),
citing, DeLuc& 345 A.2d at 640.
24. Pennsylvania Rule of Civil Procedure 1509 provides that any party may raise
preliminary objections to an equity action for "the existence of a full, complete and adequate
non-statutory remedy at law." Pa.R.C.P. No. 1509(c). This objection is an objection to the form
of the action and not to the power of the court to hear the matter. Lache~ 52 Pa. Commw. at 545,
417 A.2d at 262.
{ S:\WORLDOX\Clien ts\cb2~279(6)\00027262.DOC } 6
25. Where such an action is timely made, the action will be transferred to the law side
of the court. Id., citing, Carelli v. Lyter, 430 Pa. 543,244 A.2d 6 (1968).
26. Plaintiff's complaint was filed with this court as an action in equity.
27. Pennsylvania law does not provide for a mandamus cause of action in equity. A
mandamus action is an action at law. Brennan v. Taylor, 68 Pa. Commw. 91, 93,447 A.2d 1130,
1131 (1982). Because there is no mandamus action in equity, Plaintiff must pursue this matter as
an action at law.
28. A complaint in equity cannot properly be dismissed because there exists an
adequate remedy at law. The court is compelled by virtue ofPa. R.C.P. No. 1509(c) to certify the
action to the law side of the court. Blair v. Guthrie Development Corp., 305 Pa. Super. 292, 296,
451 A.2d 537, 539 (1982).
WHEREFORE, Defendant Borough of Carlisle respectthlly requests that this Court grant
Defendant's preliminary objections and dismiss Plaintiff's Complaint in equity. [This would, in
the first instance, require that the matter be transferred to "law'." However, in keeping with the
Borough's first argument ("Failure to Exhaust") and its remaining arguments, this "law side"
complaint should be dismissed.]
Plaintiff's Action in Mandamus is Legally Insufficient (DemurrerS.
29. If the Court determines that it will certify this action to the law side of the court, it
is nevertheless the case that Plaintiff has failed to state a claim for relief under mandamus.
Pennsylvania Rule of Civil Procedure 1028 provides that preliminary objections may be filed by
any party to any pleading for legal insufficiency. Pa.R.C.P. No. 1028(a)(4).
30. In ruling on preliminary objections for legal insufficiency the Court must
determine whether the facts pled are legally sufficient to permilt a claim to continue. Norbert v.
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Commonwealth, State Police, 148 Pa. Commw. 505, 509, 611 A.2d 1353, 1355 (1992). It is well
settled that demurrer will be sustained when it appears, with certainty, that the law permits no
recovery under the allegations pleaded. Gallagher v. City of Philadelphia, 142 Pa. Commw. 487,
491,597 A.2d 747, 748 (1991); Bolduc v. Board of Supervisors of Lower Paxton Township, 152
Pa. Commw. 248, 252, 618 A.2d 1188, 1190 (1992), appeal denied, 625 A.2d 1195 (1993).
31. A proceeding in mandamus is an extraordinary action at common law, designed to
compel performance of a ministerial action or mandatory duty where there exists a clear legal
fight in the plaintiff, a corresponding duty in the defendant, and want of any other adequate and
appropriate remedy. Commonwealth v. O'Brian, 2002 Pa. Super. LEXIS 3744, *6, 811 A.2d
1068, 1070 (Pa. Super. 2002).
32. In the instant matter Plaintiff has not established an immediate and complete
legal right to a heating before a contractually established grievance resolution committee.
Plaintiff points to no authority, created either by statute or by contract, which establishes a right
to the relief he has requested.
33. Plaintiff has also failed to establish that Defendant Borough of Carlisle has a duty
to convene a grievance resolution committee to hear a grievance regarding a disciplinary matter.
34. Plaintiff has sufficient legal remedies to challenge his termination through two
avenues of redress.
35. While mandamus is available to a police officer, or a Union representing police
officers, to fome a municipality to perform a clear contractual right (.Geriot v. Council of
Borough of Darby, 491 Pa. 63,417 A.2d 1144, appeal after remand, 73 Pa. Commw. 1,457 A.2d
202 (1983)), it is not available in cimumstances which lack the requisite clarity. Darve¥ v.
Borough of West Mifflin, 23 Pa. Commw. 267, 351 A.2d 317 ('.[976).
{ S:\WORLDOXXCIien tsXcb2~279(6)\00027262,DOC } 8
36. It is not clear that any grievant, pursuing a grievance through the relevant
contractual grievance, has an enforceable right to a Step 1, Step 2 or Step 3 grievance meeting.
Article XII 12.01 D states: "Failure at any step of this procedure to communicate the decision on
a grievance within the specified time limits shall constitute denial of the grievance, which shall
permit the grievant to proceed to the next step." This negotiated language is logically interpreted
as meaning that the only "step" in the grievance procedure which may be the subject of a Writ of
Mandamus is the last, or arbitration step. The Borough has ai~eed to participate in that step if
the grievance is processed to it.
37. Because Plaintiff has failed to establish a claim for relief in mandamus, the
Complaint should be dismissed.
WHEREFORE, Defendant, Borough of Carlisle respectfully requests that this Honorable
Court grant Defendant's preliminary objections and dismiss Plaintiff's Complaint.
Plaintiff's Complaint Contains Scandalous and Impertinent Matter.
38.
Under Rule 1028(a)(2), any party is permitted to file preliminary objections to
any pleading which fails to conform to law or rule of court or which includes "scandalous or
impertinent matter."
39. To be scandalous and impertinent, the allegations must be immaterial and
inappropriate to the proof of the cause of action. Common Cause v. Commonwealth of
Pennsylvania, 1998 Pa. Commw. LEXIS 228, 710 A.2d 108, 115 (1998), afl'd, 562 Pa. 632
(1998).
40. Plaintiff's complaint is inundated with impertinent and scandalous assertions
including specific allegations of police misconduct and allegations of a concerted effort to cover-
up the misconduct by higher ranking police personnel. Complaint ¶¶ 18-32. None of these
{ S :\WORLDOX\Clients\cb2~279(6)\00027262. DOC } 9
purported facts support or relate in any manner to the legal action before this court. Accordingly,
those portions of the Complaint which contain impertinent and scandalous allegation should be
stricken.
41. Because the impertinent and scandalous allegations contained in the Plaintiff's
Complaint are so clearly irrelevant to his claimed cause of action it is a "fact" in this matter that
they were included for an improper purpose(s).
WHEREFORE, Defendant, Borough of Carlisle respectfully requests that this Honorable
Court strike paragraphs 18-32 of Plaintiff's Complaint and sanction the Plaintiff and his legal
counsel for their unconscionable conduct before the Court.
A Pending Action Bars the Continuance of Plaintiff's Mandamus Action.
42. Under Rule 1028(a)(6), any party is permitted to preliminarily objection to a
pleading in which there is a prior pending action.
43. Plaintiff has initiated two other actions to resolve the matter before this Court.
One of these actions was initiated with the Civil Service Corranission and the other was taken
through the grievance procedure prescribed by the CBA. Both of these actions are pending and
neither process has reached a conclusion.
WHEREFORE, Defendant Borough of Carlisle respectfi~lly requests that this Court grant
Defendant's preliminary objections and dismiss Plaintiff's Complaint.
Defendant is Entitled to Counsel Fees from Plaintiff for Filing a Frivolous Action.
44. Pennsylvania Rule of Civil Procedure No. 1523 permits this Court to grant
Defendant Borough of Carlisle costs "as may be prescribed by statue or allowed by the court."
45. Pursuant to the inherent power of our courts to protect parties from
unconscionable and frivolous litigation, the Judicial Code permits the Court to award reasonable
{ S:\WOR LDOXXClients~cb2~279(6)\00027262 DOC } ] 0
costs and counsel fees to a responsive litigant where the conduct of the party commencing the
matter was arbitrary, vexatious or in bad faith. 42 Pa.C.S. § 2503(9).
46. The relentless pursuit of a claim which plainly lacks merit warrants an award of
counsel fees. Id., citing, In re Estate of Liscio, 432 Pa. Super. 4,$0, 638 A.2d 1019 (1994), appeal
denied, 652 A.2d 1324 (1994).
47. Every aspect of this action suggests that an award of costs and counsel fees to the
Defendant is appropriate: (1) the Complaint was filed in equity, an inexcusable pleading error
which created additional time and work for the Defendants and the Court; (2) the Complaint was
used as a mechanism to place scandalous, impertinent and ixTelevant assertions in the public
domain; and (3) the facts cannot support the plaintiff's effort to invoke mandamus.
48. In order to deal fairly with the present harm caused by the unjustified actions of
the Plaintiff and his counsel and to prevent any future repetition of such misconduct this Court
should sanction Plaintiff and/or his attorney by awarding costs; and attorneys fees to Defendant
Borough of Carlisle.
WHEREFORE, Defendant Borough of Carlisle respectfully requests that this Court grant
Defendant's preliminary objections and dismiss Plaintiff's Complaint.
Respectfully submitted,
Robert E. Durrant, Esquire
Pa. I.D. #21717
Gretchen K. Love, Esquire
Pa. I.D. # 84890
Campbell, Durrant & Beatty, P.C.
555; Grant Street, Suite 120
Pittsburgh, PA 15219
(412) 395-1280
Attorneys for Defendant
{ S:\WORLDOXXClients\cb2X279(6)\00027262.DOC } 11
PAGE
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
THOMAS L. DAY, JR.
VS.
BOROUGH OF CARLISLE
No. o '~ -,.,~,~-g
IN EQUITY
And noxv, this da), of
heazing in this matter be held on
ORDER
,2003 it is hereby ordered"that a
, 2003 in Court Room Number
__ at __ . M. o'clock at the Cumberland County Court House, Fourth Floor,
Comer of Hanover md High Streets, Carlisle, PA 17013.
BY THE COURT
Judge
09/02/2~B3 18. ~,5 , 1 ,' 24.,1L~, I'IDI20 PAGE
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANL,~
THOMAS L. DAY, JR.
BOROUGH OF CARLISLE
: No. 0 3
: IN EQUITY
RULE TO SHOW CAUSE WHY PETITIONER'S REQUEST FOR MANDAMUS
SHOULD NOT BE GRANTEI~
AND NOW, this day of , 2003, upon
consideration oft. he within Action for Mandamus, a rule is hereby g~anted upon Respondent
the Boroug~h of Carlisle and its Council's President, to show cause why they should not be
mandated to proceed with Step Three of the Grievance Procedure as set forth in their
Collective Bargaining Agreement with the Carlisle Police Association and specifically with
Petitioner. ,~
Rule returnable the . day of ,2003 in Court
Room of the Cumberland County Courthouse, Hanover and High Streets, Carlisle,
Perms)4vania at o'clock .M.
BY THE COURT
Judge
THOMAS L. DAY, SR.
Petitioner
BOROUGH OF CARLISLE
Respondent
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
bio. 03-4258 CIVIL TERM
CIVIL ACTION - EQUITY
IMPORTANT NOTICE
You have been sued in court. If you wish to defend against the claims set forth in the
following pages, you must take action within twenty days (20) days after this complaint
and notice are served, by entering a written appearance personally or by attorney and
filing in writing with the court your defenses or objections to the claims set forth against
you. You are warned that if you fail to do so the case may proceed without you by the
court without further notice for any money claimed in the complaint or for an), other
claim or relief requested by the plaintiff. You may lose money or property or other rights
important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER. AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CA'th,lOT AFFORD ONE, GO TO OR TELEPHONE
THE OFFICE SET FORTH BELOW TO Fl2qI) OUT WHERE YOU CAN GET LEGAL
HELP.
Cumberland County Bar Association
32 S. Bedford Street
Carlisle, PA 17013-3302
(717) 249-3166
09/82,~2~03 Z0~35 7172431587 ~D~O PaGE 05/35
IN THE COURT OF COM2ViON PLEAS OF
CUMBE~ COUNTY, PENNSYLVANIA
THOMAS L. DAY, JR.
vs. No, ~' )
:
BOROUGH OF CAR.LISLE : ]N EQUITY
ACTION IN MANDAMUS
AND NOW this 28t~ day of August, 2003 c~mes Thomas h Day, .Ir., by and through
his attorney $oseph D. Buckley, and petitions that the Honorable Court mandate that the
Borough of Carlisle proceed as required under the law and trader its Collective Bargaining
Agreement with the Carlisle Police Association and its member Thomas L. Day, Jr., based on
the following:
I. Petitioner is an adult citizen currently residing at 8.45 Baltimore Pike, Gardners,
Cumberland County, Pennsylvania 17324.
2. Respondent is a duly incorpo~ted Borough, a politicifl subdivision of this
Commonwealth, with offices located at 53 West South Street, Carlisle,
Cumberland County, Pennsylvania 17013.
3. At a[~}imes relevant to this petition, Petitioner wa~ a uniformed police officer
employed by the Borough.
4. The Borough and the Carlisle Police Association, the duly authorized Collective
Bargaining Union for Carlisle Police Department's uniformexl officen (43
P.S.§217.1-217.10 (Act liD) (herein after called "the union"), are parties to a
Collective Bargaining unit agreement which took effect January 1, 2001 and does
18:35 7i72431S87 MDWO PAGE 86/35
not expire until December 31, 2003 (a True and Correct copy is attached hereto
and masked Exhibit A).
5. The agreement specifically provides the purpose of the Agreement is, inter alia:
"To promote and insure harmonious relations, cooperation and understanding
between the Borough and its police force, to insure true collective bargaining
as outlined in ... Act Ill of 1961 ... The agreement shall apply uniformly to
all police officers who are members o£the bargaining unit ("the union")
Petitioner is a current member of the said bargaining unit, the union.
7. On or about the evening of April 2'~, 2.003, Petitioner, while off duty fro. m his
employment as a police officer for the Borough, att:ended a scheduled meeting of
the union as a union member and as a recently elected efficer of the union.
8. The said union meeting was held at the Union Fire Hall located at 35 West
Louther Street, Carlisle, Cumberland County. PA 17013.
9. Said union meeting was attended by approximately 15 union members, none of
whom were on dray police officers.
10. At the said union meeting, Petitioner solicited and requested support from the
union members and the union's legal defense fund.
11. At the said union meeting, certain union members requested Petitioner's request
be tabled until a later time.
12. At the aaid union meeting, Petitioner withdrew his request for financial support
with the understanding that he would renew his request in the future.
13. While still in the union's meeting asea and immediately after the official ending of
the meeting, many union members approached Petitioner with questions relating
" "~ ':-' 1F]:35 ~ ?~' ~ ~ =
ff~9,, ff12, ~08_ ,1 ,~4ol,.~, I,,1DI^IO PAGE 07/35
to why he was requesting the support fi'om the union, and why they should grant
him financial support.
14. These union members stated that they would be unable to make an informed
decision regarding his reciuest for their union support unless they were provided
additional information from Petitioner.
15. While still in the union's meeting area and immediately after the official ending of
the meeting, and following repeated requests fi'om several union members,
Petitioner explained why he so needed the union members support.
16. While still in the un/offs meeting are~ arid immediately after the official endhag of
the m~eting, Petitioner explained to the questioning union members that the
current system of discipline within the Police Department was neither fair,
equitable norjust.
17. While still in the union's meeting area and immediately afl:er thc official ending of
the meeting, Petitioner cited examples of how the then system of discipline for
police misconduct was unfair, inequitable and unjust.
18. These examples included reported complaints of misconduct by police officers
wh/ch included:
a. malicious mischief,
b. possible destruction of public property,
c. public drunkeness,
d. misuse and misappropriation of Borougta property at private party
where alcohol was being consumed,
e. onq:luty uniformed officer attending private drinking party,
08/02/28e3 le:35 7172~31807 HDNO PAG~ 08/35
Ii officer intentionally changing police department records to show he
was at the scene of a reported burglary alarm when he was not, and
later falsifying records in an attempt to show the officer was at the
scene of the alarm when he was not_
19. Petitioner related that the resulting discipline should have been severe for the
admitted or founded complaints, but that because of personal friendships with
investigators that the officers involved received no discipline.
20. While still in the union's meeting area and immediately alter the official ending of
the meeting, Petitioner related that h_e was being disciplined for reg.orting
additional allegations reported to him by citizens and other officers; the alleged
allegations were not investigated according to written Police Policies and
Regulations; and that when Petitioner later became frustrated with departmental
inaction to even review the various legitimate and serious allegations which were
of grave public concern, Petitioner was disciplined tgor complaining.
21. W'hile still in the union's meeting area and immediately after the official ending of
the meeting, and in response to further questioning from un.ion members,
Petitioner explained that the allegations of misconduct that were made to
Petitioner by others and duly reported, had to that d[ate (April 27, 2003) not been
fully investigated and if investigated no discipline g/yen. These allegations
included:
a. The fact that a police officer trapped a girl in a room, blocked her from
lear/rig by placing a chair under the door handle, told the girl if she
attempted to leaYe he would kill her~ and then he pulled out his service
revolver.
89/02/'2885 18:35 ?172d91887 MDWO PA6E 09/35
b. That thc same officer involved in the gun incident~ and other incidents o£
founded misconduct, may have been working part time at a pr/rate
employment job while also supposedly working for the Carlisle Police
Department as a full-time police officer ~md may have been fraudulent
receiving pay from the Borough while possibly working another pay/n.~
job as a private secur/w ~uard.
22. W'hile still in the union's mcctin/~ area and immediately after the official ending of
the meeting, Petitioner also related that someone inside the police department had
deleted files from the official polic~ records relating to the son of one of the
police lieutenants and that Petitioner had reported thc deletion to thc proper
management personnel and noth/ng was done.
23. Petitioner also cla/med that the true reason behind the management of the Police
Department's action in disciplining Petitioner w.'Ls out of fear of his newly
appointed position as a union leader.
2~,. On or about May 5, 200.3, the Borough's Chief of Police summoned Petitioner to
his office and told him that Petitioner was being investigated for statements he
had made to his fellow union members regarding the deletion of files from thc
Official Kccords of the Carlisle Police Department involving the son of a Carlisle
Poi/cc Department Lieutenant.
25. At this meeting, Petitioner in response to questions posed by the Ch/of of Police,
believed the Chief, who waz not a union member w:~s over stepping the limits of
his authority and possibly violating the labor law.s o£ this Commonwealth by
questioning Petitioner as to his statements to union members at and immediately
following the un/on meeting.
89/82/2083 18:35 717243188? MDWO PAGE 18/S5
26. Because Petitioner believed the questioning was inappropriate, he did not give the
Chief any specific recantation of the evening's discussion as he believed the
matters discussed were related to union business, were only responses to pointed
questions by fellow m~ion- members who raised questions in an effort to help the
un/on members make informed decisions on union matter.
27. Petitioner also believed that the motivation behind the actions of the Chief of
Police and other management personnel was motivated by reasons other than the
true good of the organization as shown by the Chief's disregard for the written
roles and regulations concerning the procedures fix investigating complai~ats of
police misconduct, the duties of the chain of command in such investigations, the
adverse effect that such disregard wouldhave on the members of the union and
the need for a new provision in the union contract for discipline that was fair,
equitable and just.
28. BY letter dated May 6, 2003, Petitioner was notified by the Chief of Police that he
was recommending that Petitioner be discharged fi-om his position as a police
officer for answering questions posed him by fellow union members at or
following a scheduled union meeting which related to union matters. (A true and
correct copy is attached hereto and marked Exhibit B.)
29. The letter stated that Petitioner had accused a specific Lieutenant of deleting or
having someone delete the name of his son fi'om the official records of the
Carlisle Police Depm~tment; that if such had been true it was potentially criminal
activity and therefore that Petitioner had accused the Lieutenant of a criminal act;
that the matter had been FULLY INVESTIGATED a~d that the accusations were
totally unfounded.
0%~82/28~3 l~:35 ?~7243~807 ~4D~O PAGE ~/35
30 On May 6, 2003, the Chief of Police specifically notified Petitioner that his
investigation did uncover who had deleted the files and that it had not been the
Lieutenant, and when questioned if the person deleting the files was disciplined
for violating the law, the Chief refused to answer.
3 I. Petitioner has since been made aware of the identity of the person who had
deleted the files invoh, ing the Lieutenant's son ( a sergeant who directly reported
to the said Lieutenant)
32. Pet/tioner has been made aware that the said Lion,tenant and the Sergeant who
deleted the files of said Lieutenant;s son had had telephomc communiegtions
between themselves sometime prior to the deletion of the files.
33. On May 7, 2003, Petitioner, through his .attorney, responded to the Chie£s letter
of May 6, 2003, with a letter and denied that Petit:ioner 'ever accused anyone of
deleting files and that only files were being deleted, that he had reported the
deletion of files to his superiors, that he x~,as told only two people could delete
files, the superior to whom he had reported the problem and one other person, the
Lieutenant whose son's files had been deleted. (A ta-ue and correct copy is
attached hereto and marked Exhibit C)
3,~. By letter dated May 9, 2003, Petitioner was dismissed as a police officer by the
Borongh's Council. (A tree and correct copy is attached hereto and marked
Exhibit D.)
35. On May 9, 2003, Petitioner appealed the Borough's decision to the Borough's
Civil Service Commission
36. On May 19, 2003, Petitioner filed a grievance with the Chief of Police in
accordance with Step I of Article 12 of the Collective Bargaining Agreement,
0~/~2/2003 10:35 ?~72d315~7 MD~O ~E ~2/35
claiming, inter alia, that his dismissal was based on his answers to questioning by
union members at the union meeting hall, in response to matters relating to union
issues, and that such action violated the letter and spirit of the collective
bargaining agreement. (A true and correct copy is s[ttached and marked Exhibit E)
37. By memo dated May 23, 2003, received by Petitioner on May 27, 2003, the Chief
of Police denied Petitioner's request. (A tree and correct copy is attached hereto
and marked Exhibit F.)
38. Pursuant to Step 2 of the ~m-ievance procedures of Article 12 of the said Collective
Bargaining Agreement, on May 2'), 2.003, Petitioner hy letter forwarded the
matter to the Mayor of Carlisle. (A tree and correct copy is attached hereto and
marked Exhibit G.)
39. By letter dated June 2, 2003, received by Petitioner on June 6, 2003, the Mayor of
Carlisle denied the grievance. (A tree and correct copy is attached hereto and
marked Exhibit H.)
40. Pursuant to Step 3 of the grievance procedures of Article 12 of the said Collective
Bargaining Agreement, on June 9, 2003, Petitioner filed the grievance with the
President of Borough Council. (A tree and correct copy is attached hereto and
marked Exhibit I.)
41. Step three of the grievance can not proceed until the grievance committee is
convened by the President of Borough Council.
42. Despite Petitioner's letter and the requirements of the said Collective Bargaining
Agreement's Grievance Procedure, and repeated calls to the Borough Council
President from Petitioner the most recent being today the 28th of August, 2003,
the Borough and its President have failed to comply with their duties and
18:35 7172431887 HDWO PAGE 13/35
obligations under the Labor Laws of this Commo:nwealth and the requirements of
their Collective Bargaining Agreement to proceed with step three by convening
the ghevance committee.
43. Petitioner has no adequat~ remedy at law.
44. Petitioner has been forced to expend legal fees in the presentation of this matter
and therefore requests the Court award reasonable attorney fees for the Borough's
flagrant violations of its duties.
WHER.EFORE, Petitioner requests that the Court order and direc, t the Borough
of Carlisle and its President to comply with the ~equirements of Step 3 of the grievance
procedure and schedule a meeting of the Grievance Resolution Committee and thereafter
render a decision within twenty (20) days and to order that the Borough pay Petitioner's
reasonable attorney fees and costs.
Respe_ctfully subrm[tted
1237 Holly Pike -
Carlisle, PA 17013
(717) 249-2448
IRUE COFY FROM RECORD
09 ~2,,Z 0o 18:o5 7172431807 PIDI~O PAGE
The undersigned, Thomas L. Day, Ir., hereby certifies that the statements made in
the foregoing Action in Mandamus are true and correct to the best of his knowledge,
information and belief. It is understood that .statements marie herein axe subject to the
penalties of 18 Pa.C.S. Section 4904 relating to un, worn falsification to authorities. ';
Thomas L. Day, Jr. ~z' /
0%,'02/2003 18:35 7172431807 I'4D~O PAGE 15,"35
EXHIBIT B
'Chief of Police
Carlisle Police Department
53 W~t South Su'eet
C~lisle, Pennsylvania 1'70!.3
PAGE '
16,,'
717.2A3-57-.~2
May 6, 2003
Cpl. Thoma.~ Day
Carti le Police Dep~rttnent
53 W. Sot~h Street
De~ C~L Day: . ' ....... recency ~te~
· ' 'on ~to o~le ~condu~ an~our~m' ~
the poten~ of d~cipl~a~ ect~n being taken aga~t yoa ~ the ~l~ged m~condu~ w~
Th~ inv~gg~on h~ been comp~te~ I have conduded that you dM engage in ~conduca
Spec~cMly. I have determ~ed ~at you comm~ed the fMlowing offe~es:
]. ConduU Unbeco~ an Off. er
2. D~obedience of Orders
The facm $uppo~g th~ ~term~ation are ~ fol~ws:
On Aprd 27, 2003 at the Un~n Fire ComP~Y f°~wing a Pol~e ~$~n ~eting, you
rl~le Polke Dep~t~ut of ~let~g or alter~g Metro fil~
...... .~ [~ Bar~ WaRen of the Ca - -~-~ --cord ~vst~) m wh~h h~ son
~ect removing ~e name of Ma~h~' Wa~en from o~mial
Matth~ ~ ente~& ~ Carl~ police Depa~ment patrol
depart~nt record. You made th~ occasion to three (~)
The a~eg~ion that Z& W~ezs deleted or alte~d recor~ ar h~ ~Y file or record ~voiving
h~ $on deleted or altered w~ ~v~tigated and ~ totally unfo~nde~
~y mag~g thee acc~ YOU aecmad ~ Walters of m~cond~t and pos$ibO cr~inal
conduca Such a~ama~o~ to junior officers undermine La Walters, the Cha~ of Comm~d
and ~ an ~saMt on the character of ~a Walters. Th~ con$t~at~ CondUct Unbeeo~nff ~
O cer.
09/02/'2~3 10:~5 ?i724~i807 I,~DW~] PAGE
THE LAW OFFICES OF
JOSEPH D. BUCKLEY
1237 HOLLY PIKE
CARLISLE, PA 17013
TELEFHONE (717) 24~-2448
F.~a~ C71'/) 249-4~03
May 7, 2003
Stephen L. Margeson
Chief of Police
Carlisle Police Department
53 West South Street
Carlisle, PA 17013
Re: Corporal Tom Day
Dear ChiefMargeson:
Thank you for providing mc the courtesy of attending your meeting this afternoon
with Corporal Day, Lieutenant Pfahl, Sergeant McCoy and yourself. As related to you I
had not had thc opportunity to conduct my own investigation or ~ven ~peak with Corporal
Day prior to the meeting, except for a few minutes on our ride from my office to the
station.
I have had the opportunity to speak in depth with Corporal Thomas Day, with
other officers, with the Data Center at the Harrisburg Police Depax~uiient and to review
the letter you provided at the meeting and other documents. I am a bit pm~.zled and
believe that your action may have been pr~nature and your re4uested discipline arbitrary
and cepdcious.
My investigative background has taught me that timelines are not only helpful,
but necessary in deto,falning facts. I have determined the follox~ing:
Summer 2002 - One weekend, last summer Corporal Day was the night
supervisor. A call came into Carlisle police headquarters from Oiticer Mace that he had
spotted a motor vehicle known to have been owned and usually operated by one Math~-w
Walters traveling at a high rate of speed down the Rimer H/ghway. Mathew Walters is
the son of Lieutenant Walters of the Carlisle Police Depaxt,,lent. Officer Mace pursued
the vehicle, but it would not stop and later evaded Officer l~ce. Upon Officer Mace
returning tn the station Officer Mace, Deb Daniels, Officer Latshaw and Corporal Day
had a discussion about Mathew and his behavior. Corporal Day had never had any
problems with the lad, but was told by the other officers and the dispatcher that Mathew
had been stopped or picked up on at least four occasions. (At our meeting Chief you
acknowledged that you knew of at least three occasions when Ma,thew had been stopped
Le~erto ChlcfMargeson
Page Two
or taken home by Carlisle Police officers. You also stated that you had knowledge that on
at least one occasion aaa unnamed Officer did delete Math~w Walters name from the
official records) One of the officers or the dispatcher checked the Metro database to
verify thc number oi'incidonts in which Mathew Walters had been involved; however, the
database showed no information regarding Mathew. This puzzl~ the Officers, Daniels,
and later Officer Kurta who had specifically either entered data or preirided data to
others for entry. They turned to the night supervisor, Corporal Day, who assured those
concerned that he would check into the matter of data not reaching the system or being
changed.
During his next day duty, Corporal Day bwught thc matter and his concerns to the
attention of Lieutenant Pfahl. He ~plained what had occurred during his watch and the
matter of Mathew Walters and thc data which was reported missing from the
system. Lientenant Pfahl Wld Corporal Day that there wer~ only two people who had thc
authority to change fil~s, himself and Lieutenant Walters. Lieutenant Pfahl then
specifically stated that "I have not made any changes," emphasizing 'T'. Corporal Day
requested the matter be reviewed. Corporal Day received no f,~llow-up from his chain of
command regarding this matter.
On Deccmbor 8, 2002, the Carlisle Police received a call from a resident of West
South Street that on the evening of December 7, 2002, someone ,had driven a motor
vehicle acwss the front lawns of many of thc resident's homes. There had been many
complaints of college students creating problems in the area. Corporal Day was on duty
and the supervisor. He and three other officers (Collare, Cohick and Kennedy)
investigated the matter, met with residents, checked the high school and college for a
missing or stolen all tewain vehicle (a Gator Tractor). Later it was determined that a
similar vehicle was owned by Russ Macaluso. Assuming that one of his children may
have driven the vehicle through thc neighborhood lawns, Corporal Day questioned Dr.
Macaluso. Behoving that Corporal Day's questioning was a "gag" instigated by Sergeant
Guido, Russ Macaluso not only admitted that he and Guido had been driving thc vehicle
through the neighborhood lawns, Dr. Macaluso then took Corporal Day into bis home
and .showed him a series of digital photographs taken the evening before. The photos
were of a drinking party and showed various poses of Mike Guido tied or taped to the
floor and furniturc and alcohol being poured into his mouth. The photos also showed
Robin Burns and Corporal $oseph Hogarth in attendance wimessing the activity. The
photos clearly showed Corporal Hogarth in his Carlisle Police uniform. Corporal Hogarth
was on duty that evening and was attending the party while on duty.
In accordance with deparimental policy, the incident was written up by Corporal
Day and turned over to Lientenant Walters. Corporal Day heard nothing. He later
inquired into thc matters and was told that it had all been a mi~'understanding and there
was no finding of any wrongdoing.
On Decgmber 15, 2002, Thomas Day was elected by the members of the police
association as its Treasurer and a representative of the union.
Letter to ChiefMargeson
Page Three
On Ianuary 18, 2003 while on patrol near Rod's Roadhouse, Corporal Day was
cor~ffonted by a very upset woman. She was screaming at lfial saying that the Carlisle
Police department is corrupt. She said that during a domestic dispute her former
boyfriend, Detective Smith had placed the barrel of his service revolver against her
temple and threatened her life. That' the matter was reported to police authorities and
honing was done, She also claimed that she personally had gone to you C'hiefMargeson
and reported the incident and still nothing was done· (Corporal Day was aware that
Detective Smith had been involved with the woman a few years be/ore this ineidmt. The
woman was then a minor and that there had been an incident with her, Detective Smith
and another Borough Official at a local tavern which possibly involved supplying alcohol
to a minor.) Either later that morning or the next day, Corporal Day mentioned the
incident to Sergeant Guido and the allegations made by the woman. Corporal Day
suggested that it was something that had alleg~dly happened a few years ago, was water
over the dam and he did not wish to have the matter pursued. However, Corporal Day
also related to Guido that he had received other recent allegations against Detective
Smith: one involving the return of money missing from an evidence locker, the other
relating to working private security during his scheduled duty'hours. The former ineid~t
had been related to him fi*om Lieutenant Pfahl, and the latter f. bom Corporal Klepper and
Detective Kurtz. A few days later Sergeant (3uido requested Corporal Day write the
matter up as an official report. A few days later after he had not written the report,
Corporal Day was officially ordered by you Chief Margeson, lin'ough Sargeant Guido to
write a report on the allegations. Corporal Day wrote up the allegations as given to him
by others and gave the report as directed to Sargeant Guido. Corporal Day was not
conducted regarding this matter for a period of two months. The matter was later
allegedly investigated and dismissed, but upon checking, certain key witnesses were not
even contacted.
In late $anuaty or early February, 2003 during a change in shifts from nights to
days, Sergeant Guido initiated a conversation with Corporal Day at the station. This was
an average daily chat. Also present were Officer John Haggerty and Robin Bums, a
dispatcher. Sergeant Guido informed the group that the daylight Detectives needed to
held accountable for their time out of the office. He stated that he was going to bring
them in line. Corporal Day laughed and did in his regular booming, deep voice say,
"You've got to be kidding. Jill files a complaint that Smitty held a gun to her head you
order me to write it up and nothing is clone about that and you expect that they are going
to do anything to Egolf and Nestor." Guido asked what he meant and Corporal Day
responded that Guido knew what he meant, the report he'd been ordered to write on
Detective Sm/th and the allegations regarding the use of the gun, repayment of money
and working at the Water Company while on duty. Corporal Day again asked Sergeant
Guido what had become of the report and tho investigation? Corporal Day questioned
whether Detective Smith had a protector in the borough. The conversation then turned to
other matters.
Letter to Chief Margeson
Page Four
Three days later Sergeant Guido spoke privately to Corporal Day and suggested
that they had been wrong having the conversation about the detectives in front of Robin
Bums.
On February 25, 2003 Corporal Day wrote a report to Sexgeant Guido regarding
Detective Smith's failure to respond to a burglar alarm call after being dispatched and
having advised others that he was so responding, but did not. Later Corporal Day showed
Guido certain entries Detective Smith had made in the official :records showing he was at
the scene when he was not. Corporal Day received no follow-up regarding this report.
The first week of March 2003 Corporal Day was questioned by Lieutenant Plaid
who needed the telephone number of the woman who in January had made allegations
regarding Detective Smith and the Chief,
The second or third week in Man:h, but'prior to Mamh 28, 2003, Corporal Day
along with the three other elected members of the police uni0~! delivered a list of 30-40
new demands for thc up-coming contract to the Borough Manager.
On March 2g, 2003 Corporal Day was called into the Chief's office and told that
he was under irlve~figation for alleged statements he had made to Sergeant Guido in front
of Officer Haggerty and Robin Burns. Corporal Day was puzzled. He, told you that he had
written the report on your direct order· He was also concerned because as he said no one
even started looking into the matter until recently. Corporal Day explained the
conversation and stated that he never said that he knew if an'.~.hing was ever done by
Detective Smith, except that he had personal knowledge that Smith had not responded to
a BA (the February 25, 2003 incident). The rest ofthe statemenl~ had been allegations by
others. He admitted that there was a conversation, but it was initiated by his superior. He
made no claim that any particular person was covering anything up, oniy that the repor~
was requested to be written on your order, that it was written, that time had past and
nothing was being done or had not been done, The cover-up allegation had been made by
Detective Smith's former lover, not Corporal Day.
April 24, 2003 Corporal Day receives a letter stating that you had personally
investigated the matter of h!m speaking with Sergeant Guido in. fi'ont of subordinates. It
related to a ie~,ort of allegations whioh he had reported to Guido in early January at your
direction. You concluded that Corporal Day "in essence made criminal and rr~iseonduet
allegations against Detective Smith, then accused the Chief of' Police, Lt. Walter~ and
Detective Nestor of misconduct b~ knowingly covering it up." 'Your letter says that you
are requesting he be demoted in rank and suspended. Corpe,ral Day was placed on
administrative leave.
(At no time has Corporal Day alleged anyone has covered up anything, even
though the evidence may be pointing that direction. He is not charged with investigating
anything. Allegations were made by others and properly reported IN WRITING IN
JANUARY 2003. NOTHING WAS DONE.)
~ 22,.
0%/02/2003 10::,5 7i724~°1~',07 HDI^IO PAGE
L~ter to Ckief Margeson
Page Five
April 27, 2003, Mr. Day attends a union meeting ~'~ its Treasurer and elected
union Board member. Mr. Day, as a union member, requested that the membership
provide him with funds to hire an attorney to fight what he believes to bo the unfounded
charges in your April 24, 2003 letter. When questioned what was ha talking about, he, as
a union member, informed thc members present of the cha.,ges you have levied. They
were dumbfounded. After a discussion thc matter was tabled until after'action by thc
Borough Council. Following ~he meoting many members were questioning Mr. Day
regarding your April 24 actions and asl~ng why the union should be involve& Mr. Day,
as their up. ion representative, told them that it p,~z. led him flint the management of the
depa~tr~ent would devote such time and effort to coming after him on the heals of the
union's recent demands for the new contract for which he was a driving force, tie, as a
un~on representative, said that you and other management personal were attempting to
railroad him for something you directed him to write. He told them he couldn't
understand why you would spend more time investigating wha~ he said to others than you
would investigating the underlying wrongdoings which were potentially criminal in
nature. He told them, as union representative, tl~t months, ago a report on possible
intentional deletion or omission of Lt. W~lters son's numerous incidents had not even
been reviewed. He told them, as a union member and union loader, that if the rank and
file police officers follow procedure and report allegations of possible wrong doing of
management, who will support members when matters ar~ act investigated? He also
asked that if we do report ~pervisors and they retaliate who ~11 support members? lie
also stated that if they management attempts to remove union representatives through
trumped up charges who will support members.
May 5, 2003 you informed Corporal Day that you were investing him for possible
misconduct for statements he may have made at the union meeting regarding Lieutenant
Walters and the deletion of fil~s. Corporal Day ~xplained that he had reported this matter
to Lieutenant Pfab. l many months ago. As he believes nothing was ever investigated and
now he is being blamed for someone's failure to act.
On May 6, 2003 we mot in your office. You presented Corporal Day with a letter
alleging he had accused Lt. Walters of misconduct at a un.ion m~ting. You told me that
you had investigated the matter and had found that someone, not Corporal Day, had
deleted information regarding Mathow Walters bom the records. You also admired that
Mathew Walters had been involved in several reported incidents but no record of them
were found under his name in the data system. Following our meeting today I spokg with
Bob Morrison who heads the data center for the Harrisburg Police Depamnent . I
understand that he is the g~ru of tho Metro Data System. I wanted some general
information regarding the system. As I began my inquiry he asked if this involved a
matter at the Carlisle Police Department. He told me that he first r~ceived a call fxom the
Carlisle Police regarding this very matter only in the last day and he had given a
preliminary report to you as Chief of Police. He also stated that you had requested that he
reword his report which he would be doing tomorrow and that I should contact you for a
copy.
88/82/'2883 18:35 7i72431887 HDklO PAGE Z3/35
Letter to Chief Margeson
Page Six
As I initially stated, I believe you may have acted prematurely. F~t of all you are
attempting to discipline Corporal Day for discussion of allegations which had been made
by others to him in his official capacity as a police officer, which had been duly reported
as r~quired by depa~h~ent policy, and whleh were not investigated as required. These
discussions only took place after nothing had been done by his suPeriors..Is it not those
charged with investigating the matter who should be disciplined for falling to act or to act
promptly? Also who is doing the investigating? If a person has allegedly committed a
wrong, it is proper to have that person investigate himself?. From the alleged statements
made by others to Corporal Day and reported, you, a Lientenmt, a Sergeant, a Corporal
and a Detective may have had some involvement. Who did the investigating? Would it
not be better to have an independent party first review the allegations.
Mr. Day's statements at a union meeting regarding the Mathew Walters issue
have been twisted and taken out of context. His statements to union members in his
capacity as a union member or board member ~re protected by federal and state laws.
I have spoken to several members of the department Who state that Corporal Day
is one of the most fair and honest officers on the force. He has had'en unblemished 15
years of service and lxis evaluations support this position. When he sees something
wrong, inside or out side the depaxh~lent he does that which is required by law and policy.
Never has he gone public with any information. He believes he has b.een targeted not only
because of his recent election as a union representative, but also because of his inquiry
into the Mathew Walters matter and his reports on Detective Smith, Sergeant Guido and
Corporal Hogarth. It appears that certain persons wit.bin the deparanent and/or their
family members do or have received preferential treatment, It fhrther appears that certain
persons are retaliating directly or iladirectly for Corporal Day"s reporting that which he
has sworn to do. Finally, assuming arguendo, even if he had let slip that there was an
investigation, the requested punishment far exceeds the alleged wrongdoing. We are
requesting that you reverse your position and reinstate Corporal Day to his full rank as
soon as possible. Thank you.
Very sincerely yours,
.lDB/mzf
Cc:
Joseph D. Bu¢Idey, Esquire
Mayor Wilson
Fred Bean, Borough Manager
Lt. Pfahl
Sgt. McCoy
HAND DELIVERED
89,,'"82,,'"2883 18:35 7172431887 i','IDNO PAGE 24/'35
EXHIBIT D
BOROUGH OF CARLISLE
"Committed To Excellence In Community Service"
PAGE
25/35
Corporal 'Faomaz L. Day, Jr.
845 Baltimore Pike
Oardnero, PA 17:324
VI~ HAND DELIVERY
Dear Corporal Day:.
You are' advised that the C~rlisle Borough Council, in the presence of your legal counsel, and
by marion duly made and seconded during a pubEc mee~in..~ held on Thursday, May 8, '2003,
tmnnimo~y VOted to d~l~LiSS yola f~om ~.he Carlisle Police Department, Az cause for
dismissal, the Borough Council adop~l and concurred with'the charges outlined in the letter
to you from L'~oJef Margeson, dasd May 6, 2003; a copy of that.letter is atf_~ebed and
incorporated herein by reference. At that meeting, Mayor Wi]so~ indicat4~:~ his concurrence
in thc charges ou~llned, and conveyed hln recommendation fei' dismissal. Specifically, th~
Borough Council hz~ determined that you engaged in conduct unbecoming an officer and that
you disobeyed orders.
You have l~he right to appeal your dismissal to the CarLisle Borough Civil Service
Commi~rq~On under apl~icable Pre~risioflq of the pennnylvanin Borough Cede, the Code of the
Borough of Carllnle, and the Rules and Regulations of the Carlisle Boro~,gh Civil Service
Commission. Purs,~ant to Rule 903 off the Rules and Regulationa of the Carlisle Borough
Civil ~ervice Commis.~on, your appeal must be fi]ed within ten CI0) days of your receipt to
make such appeal, it should be timely fi]ed with M~. Ben Fraucavilta, Ghairman, at his
addgess of 1315 Georgetown Circle, Carlisle, Pennsylvania 17013 and copy to Mr. Frodrick
M. Bean, Catlide Borough Manager,, 53 West South Street, Carlisle, Pennsylvania 17013.
You may be enritled te carta~ accrued employment benefits az a r~nolt of your service to the
Borough. You should contact Karen Volz Personnel-Risk Manager, $3 West ~outh S~reet,
carlisle, Pennsylvania 17013, to apply for those benefits. '". , ',
S~ace~Lv,
CoundlVice-Pre~dent
C: Bolic/tor Edward -~cherpp ~
l~--%"or Fredtick Bean
Police Clfief Murgesen
Personnel-Risk Manager Karon Volz
COPY
F~nclosur'~
0509.1
53 West South Street, Carlisle, PA 17013 Tel. (717) 249-4422; Fax (717) 249-2932
288.-, 18:.:,5 7172431887 f,tDklO PaGE
EXHIBIT E
89/82,/2883 18..:,_ 717243i887 I..,1DI~O PAGE
Cpi. Thomas L. Day, J~'.
845 Baltimore Pike
Gardners, PA 17324
May 19, 2003
Chief Stephen L.'Ma~gason
Carlisle Police Dei3art~, ant
53 West South Street ....
Carlisle, PA 17013'
Chief Marg~son,
In accordance with Article Xll of the Collective Bargaining Agreement between
the Borough of Carlisle and the Carlisle Borough Police Association, I am filing the
following grievance for the reasons stated below:
A grievance is defined by 12.00 as "an alleged
misapplication of the terms and conditions of this Agreement." (emphasis added)
Article I, 1.00 ofthe Agreement states, in part, 'It is the purpose of this
Agreement... to insure true collective bargaining as outlined in Se~on 1 and 2 of Article
III of 1968-. This Agreement shall apply uniformly to all police officers who are
members of the bargaining unit."
The Agreement does state, in part, in Article III - 'The Borough retains all dghts
not specifically medified by the terms of the Agreement which rights shall inctude
...the... discharge of policemen...,'
My grievance is that I have been disciplined and discharged for the exercise of
free speech at a Police Association meeting. AJthough I deny the alleged statements
attributed to me, any statements made at the association meeting, while at the meeting
location, and made in reference to matters discussed at the meeting, are privileged. To
discipline and/or discharge me violates the purpose of the Agreement and its verY
purpose. To permit management to d~s~-'pline association members from the free
exemise of speech and the free exchange of ideas as'they relate to the bargaining unit
and the agreement, violates the agreement. Please contact me once you have
scheduled a meeting to discuss this, which mustbe accomplished in 5 days,
Sincerely,
'4~pl, Thomas L. Day, Jr,
Co: ',~oseph D. Buctdey, Esquire
Gary M. Lighlalan, Esquire
EXHIBIT F
S~phcn L. Margesoh
.Cl~b[ of Police
18:35
7172~31887
Carlisle Polic~ Department
C~lisle, Pennsylvania 17013
MEMO~D~
PAGE 29/35
? 17-243-5252
Thanm~ L. Day, Jr.
May 23, 2OO3
Grievance Correspondence Dated May 29, 2003
On May 21, 2003, I received the referee_ced correrponder~ee from you. Plea, se be advised that
the Grievance l~s been denied for the following
The Collective Bargaining Agreement specifiee the n~tters that ,~ be p~tezt~ t~ro~h t~
Gr~vance ~itm~n P~ure. T~ ~ ~ prot~t d~ciplL~ is ~ one of t~ speci~
i~. T~h p~t p~t~¢, t~ ~s (CarlYle Bo~h a~ the P~e ~s~iatio~ ~
nego~t~ over t~ abEi~ ~r an o~er ~ protest d~cipli~. Th~ past pr~t~ is pa~ of t~
Collective Bargaini~ ~e~. T~ pr~t~ ~ to u~e t~ Civil Se~e Pr~edure of t~
Bo~h C~ W give Pol~e O~ers, w~ ~ve b~n s~je~ W d~cipline, a p~ess ~r
c~ngi~ t~t ~cipline. You have availed yourself ~ that past p~ctice (Clue Serv~e
Comm~s~n Heari~) a~ have no other m~e u~er the Collective Bargaini~ ~r~ment W
c~lle~e your d~cipli~.
Sincerely,
Stephen L. Margeeon, Chief of Police
Carlizl~ Borough Pol~e Department
C: Mayor Kirk Wilson
Manager Fred B~an
Set. Kenton McCoy
Joseph Bu~kl.~, Esquire
Ed~vard Schorpp~ Esquire
~VMB / sda
0523,2
8~,782/2883 18:35 '7172431887 I~IDI^IO P,~GE 38~" 35
EXHIBIT G
Cpl. Thomas L. Day, Jr.
845 Baltimore Pike
Gardners, PA 17324
May 27, 2003
Kirk Wilson, Mayor
Office of the Mayor
Borough of Carlisle
53 West South Street
Carlisle, PA 17013
Mayor Wilson,
In accordance with Article XII of the Collective Bargaining Agreement between
the Borough of Carlisle and the Carlisle Borough Police Association, I am writing to you
in accordance with Step 2 of the grievance procedure, On May 19, I sent a letter to the
Chief under Step 1 requesting a meeting and receNed the enclosed letter today. I had
hoped under the grievance procedure I would be reinstated for the reasons set forth'in
the letter and set them out here again:
A grievance is defined by 12.00 as "an alleged Y.J.~, ~
misapplication of the terms and conditions of this AgreemenL" (emphasis added)
Article I, 1.00 of the Agreement states, in part. "It is the purpose of this
Agreement... to insure true collective bargaining as outlined ill Section 1 and 2 of Article
I11 of 1968... This Agreement shall apply uniformly to all police officers who are
members of the bargaining unit."
The Agreement does state, in part, in Article III - "'l'he Borough retains all rights
not specifically modified by the terms of the Agreement which rights shall include
...the... discharge of policemen...,"
My grievance is that I have been disciplined and discharged for the exercise of
free speech at a Police Association meeting. Although I deny the alleged statements
attributed to me. any statements made at the association meeting, while at the meeting
location, and made in reference to matters discussed at the meeting, are privileged. To
discipline and/or discharge me violates the purpose of the Agreement and its very
purpose. To permit management to discipline association members from the free
exercise of speech and the free exchange of ideas as they relate to the bargaining unit
and the agreement, violates the agreement. Please contact me once'you have
scheduled a meeting to discuss this, which under step 2 is to be held within 7 days.
Sincerely,
Cc:
Joseph D. Bucldey, Esquire
Gary M. Lightman, Esquire
Cpl. Thomas L. Day, Jr.
B9 82/208= 18,~5 7172431887 f',IDWO PAGE 32,/35
EXHIBIT H
June 2, 2003
7172431887
PAGE
Mr, Thomas L. Day, Jr.
845 Baltimor~ Piim
Gardeners, PA 17324
RE: Oricvancc Coricspoudgnce Dated May 27, 2003
Dgar Mr. Day:
I submit thc following r~sponso to your May 27, 2003 letter. Thc position of thc Borough
of Carlisle and thc Mayor is exactly as thc position sta~gd by Chief Margeson in his
corresponds:nc,~ to you dated May 23, 2003. You arc free to take thc position that your
Grievance will be d~nicd through every s~p of thc Grievance Procedure, short of
AFoirration. If your Uni°n agrees to process your Grievance to AYnirration, the Borough
will ch:fend itself on both procedural and substantiative grounds, Proccducally, as already
cxplalne~[, it is thc position of thc Borough that yom' sole route for challenging your
dismissal is an appeal to the Civil Service Conunission.
Sinc~ly,
Kirk R. Wilson
Mayor of Ca~USlo
C:' Carlisle Borough Council
Manager Fred Bean
Sergeant IOmton bfcCoy
Solicitor 51wani Soboipp ./
Joseph D. Buckley, F. squir~
0602.1
,~4/35
09,/02/20D3 10:35 7172431807 I,,IDglO PAGE
EXHIBIT I
Cpl. Thomas L. Day, Jr.
845 Baltimore Pike
Gardners, PA 17324
PAGE
June 9, 2003
Steven J. Fishman, Esquire
President, Borough Council
Borough of Cadisle
53 West South Street
Carlisle, PA 17013
Dear Mr. Fishman:
In accordance with Article Xll of the Collective Bargair~ing Agreement between
the Borough of Carlisle and the Carlisle Borough Police Association, I am writing to you
in accordance with Step 3 of the grievance procedure. OnMay 27, I sent a letter to the
Mayor under Step 2 requesting a meeting and received the enclosed letter today. I had
hoped under the grievance procedure I would be reinstated for the reasons set forth in
the letter and set them out here again: ...
A grievance is defined by 12.00 as "an alleged ~,
misapplication of the terms and conditions of this Agreement." (emphasis added)
Article I, 1.00 of the Agreement states, in part, "It is the purpose of this
Agreement... to insure true collective bargaining as outlined in Sec'don 1 and 2 of Article
III of 1968... This Agreement shall apply uniformly to all police officers who are
members of the bargaining unit."
The Agreement does state, in part, in Article III - "The Borough retains all rights
not specifically modified by the terms of the Agreement which rights shall include
...the... discharge of policemen...,'
My grievance is that I have been disciplined and discharged for the exercise of
free speech at a Police Association meeting. Although I deny the alleged statements
attributed ~ me, any statements made at the association meeting, while at the meeting
location, and made in reference to matters discussed at the meeting, are privileged. To
discipline and/or discharge me violates the purpose of the Agreement and its very
purpose, To permit management to discipline association members from the free
exercise of speech and the free exchange of ideas as they relate to the bargaining unit
and the agreement, violates fire agreement. Please contact me once you have
scheduled a meeting with the grievance resolution committee to discuss this, which
under step 3 will be scheduled within 10 days of receipt of this request. Thank you.
Very sincerely yours,
35/35
Cc: X~Joseph D. Bucldey, Esquire
Gary M. Lightman, Esquire
Cpl. Thomas L. Day, Jr.
June 2, 2003
Mr. Thomas L. Day, Jr;
845 Baltimore Piim
Coat, hera, PA 17324
RI~: Grievance Con~$pond~nce Dated May 27, 2003
I submit thc following respons~ to your May 27, 2003 letter. Thc position of thc Borough
of Carlisle and the'lviayor is exactly as thc position s~a~d by Chicf Margeson in his
correspondence to you dated May 23, 2003. You arc free to tak~ thc position that your
Cnicvaace will be d~nied through every step of thc Grievance Procedure, short of
Arbitration. If your Uni°n agrees to process your Grievance to Arbitration, thc Borough
will defend itself on both procedural and substantiative grounds. Procedurally, as already
explained, it is the position of the Borough that your sole route for challenging your
dismissal is an appeal to the Civil Service Commission.
Sincerely,
Kirk R. Wilson
Mayor of Carlisle
C:' Carlisle Bom~h Council
Manager Fred Bean
Sergeant Kenton McCoy
Solicitor ~dward S~horgp /
Joseph D. Bucldey, F. squirff
(hry lVl. Lighmum, Esquire
KRW/sda
0602.1
VEI~J~ICATION
I, St~hen L. Matheson. Chief of Polioe for Defendant Carlisle Boroush, herein, do
verify ~ha~ I am autborizcfl to cxccut~ Ibis Ve~fic~ion on its behalf ~n~ fur, her ~at the
averments of fact made in the w~in Pr~min~l'y ObJecitoas are ~ue and correct ba~ed on my
lmowled~e, information a~d bclie£
I tmdersta~d ~hsI any false sra~nen~ made herein are subJec~ ~o pe~al~ of 18 Pa, Cons,
~..ann. §4!~04, relali~ to unsworn fal~..flcation ~o au~horilie~,
[$:lwoPd.,DOX~ClIten ~2',27g(6)~O~27~62.DOC]
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the 17th day of September, 2003, a tree and
correct copy of the foregoing PRELIMINARY OBJECTIONS TO PLAINTIFF'S
COMPLAINT was placed in the United States Mail, First Class postage prepaid, addressed to
the following:
Joseph D. Buckley, Esquire
1237 Holly Pike
Carlisle, PA 17013
Respectfully submitted,
CAMPBELL, DURRANT & BEATTY, P.C.
Pa. I.D. #21.717
Gretchen K.. Love, Esquire
Pa. I.D. # 84890
Suite 120, 555 Grant Street
Pittsburgh, PA 15219
(412) 395-1280
Attorneys fbr Defendant
{ S:\WORLDOX\Clients\cb2~279(6)\00027262.DOC }
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
THOMAS L. DAY, JR.,
Plaimiff,
VS.
BOROUGH OF CARLISLE,
Defendant
No. 03-4258
ORDER OF COURT
AND NOW, this day of , 2002, upon
consideration of Defendant's Preliminary Objections to PlainfiWs Complaint in Equity, IT IS
HEREBY ORDERED, ADJUDGED and DECREED that the Preliminary Objections of
Defendant, Borough of Carlisle, are granted and the Plaintiffs Complaint is dismissed with
prejudice with the award of appropriate costs and attorney's fees.
BY THE COURT:
{ S :\WORLDOX~Clients\cb2~279(6)\00027262.DOC }
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
THOMAS L. DAY, JR.,
Plaintiff
VS.
BOROUGH OF CARLISLE,
Defendant.
No. 03-4258
PRAECIPE FOR APPEARANCE
Filed on behalf of Defendant,
Borough of Carlisle
Counsel of Record for this Party:
ROBERT E. DURRANT, ESQ.
Pa. I.D. # 21717
GRETCHEN K. LOVE, ESQ.
Pa. I.D. # 84890
CAMPBELL, DURRANT & BEATTY
555 Grant Street, Suite 120
Pittsburgh, PA 15219
Telephone No.: (412) 395-1280
{ S :\WORLDOX\Clients\cb2L279(6)\00027277.DOC }
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
THOMAS L. DAY, JR.,
Plaintiff,
VS.
BOROUGH OF CARLISLE,
Defendant
No. 03-4258
PRAECIPE FOR APPEARANCE
TO THE PROTHONOTARY:
Kindly enter the appearance of Robert E. Dun'ant, Esquire and Gretchen K. Love,
Esquire on behalf of Defendant Borough of Carlisle in the above-captioned matter.
Respectfully submitted,
CAMPBELL, DURRANT & BEATTY, P.C.
Robert E. Durrant, Esquire
PA ID # 21717
Gretchen K. Love, Esquire
PA ID # 84890
Attorneys for Defendant Borough of Carlisle
555 Grant Street, Suite 120
Pittsburgh, PA 15219-4408
(412) 395-1280
{ S:\WO RLDOX\Clients\cb2X279(6)\00027277.DOC }
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the 19th day of September, 2003, a tree and
correct copy of the foregoing PRAECIPE FOR APPEARANCE was placed in the United
States Mail, First Class postage prepaid, addressed to the following:
Joseph D. Buckley, Esquire
1237 Holly Pike
Carlisle, PA 17013
Respectfully submitted,
CAMPBELL, DURRANT & BEATTY, P.C.
By:
Robert E. Durrant, Esquire
Pa. I.D. #21717
Gretchen K. Love, Esquire
Pa. I.D. #84890
Suite 120, 555 Grant Street
Pittsburgh, PA 15219
412) 395-1280
Attomeys for Defendant
{ S:\WORLDOX\Clients\cb2X279(6)\00027277 .DOC }
THOMAS L. DAY, JR.
Petitioner
BOROUGH OF CARLISLE
Respondent
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No. 03-4258 CIVIL TERM
CIVIL ACTION - LAW
IMPORTANT NOTICE
You have been sued in court. If you wish to defend against the claims set forth in the
following pages, you must take action within twenty days (20) days after this complaint
and notice are served, by entering a written appearance personally or by attorney and
filing in writing with the court your defenses or objections to the claims set forth against
you. You are warned that if you fail to do so the case may proceed without you by the
court without further notice for any money claimed in the complaint or for any other
claim or relief requested by the plaintiff. You may lose money or property or other rights
important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE
THE OFFICE SET FORTH BELOW TO F1ND OUT WHERE YOU CAN GET LEGAL
HELP.
Cumberland County Bar Association
32 S. Bedford Street
Carlisle, PA 17013-3302
(717) 249-3166
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
THOMAS L. DAY, JR.
VS.
BOROUGH OF CARLISLE
: No. 0 3
: CIVIL ACTION - LAW
AMENDED ACTION IN MANDAMUS
AND NOW this 3rd day of October, 2003 comes Thomas L. Day, Jr., by and through
his attorney Joseph D. Buckley, and petitions that the Honorable Court mandate that the
Borough of Carlisle proceed as required under the law and under its Collective Bargaining
Agreement with the Carlisle Police Association and its member Thomas L. Day, Jr., based on
the following:
1. Petitioner is an adult citizen currently residing at 845 Baltimore Pike, Gardners,
Cumberland County, Pennsylvania 17324.
2. Respondent is a duly incorporated Borough, a political subdivision of this
Commonwealth, with offices located at 53 West South Street, Carlisle,
Cumberland County, pennsylvania 17013.
3. At all times relevant to this petition, Petitioner was a uniformed police officer
employed by the Borough.
4. The Borough and the Carlisle Police Association, the duly authorized Collective
Bargaining Union for Carlisle Police Department's uniformed officers (43
P.S.§217.1-217.10 (Act 111 )) (herein after called "the union"), are parties to a
Collective Bargaining unit agreement which took effect January 1, 2001 and does
not expire until December 31, 2003 (a True and Correct copy is attached hereto
and made a part hereof).
5. The agreement specifically provides the purpose of the Agreement is, inter alia:
"To promote and insure harmonious relations, cooperation and understanding
between the Borough and its police force, to insure true collective bargaining
as outlined in ... Act 111 of 1961 ... The agreement shall apply uniformly to
all police officers who are members of the bargaining unit ("the union").
6. Petitioner is a current member of the said bargaining unit, the union.
7. On or about the evening of April 27, 2003, Petitioner, while off duty from his
employment as a police officer for the Borough, attended a scheduled meeting of
the union as a union member and as a recently elected officer of the union.
8. The said union meeting was held at the Union Fire Hall located at 35 West
Louther Street, Carlisle, Cumberland County. PA 17013.
9. Said union meeting was attended by approximately 15 union members, none of
whom were on duty police officers.
10. At the said union meeting, Petitioner solicited and requested support from the
union members and the union's legal defense fund.
11. At the said union meeting, certain union members requested Petitioner's request
be tabled until a later time.
12. At the said union meeting, Petitioner withdrew his request for financial support
with the understanding that he would renew his request in the future.
13. While still in the union's meeting area and immediately after the official ending of
the meeting, many union members approached Petitioner with questions relating
to why he was requesting the support from the union, and why they should grant
him financial support.
14. These union members stated that they would be unable to make an informed
decision regarding his request for their support unless they were provided
additional information from Petitioner.
15. While still in the union's meeting area and immediately after the official ending of
the meeting, and following repeated requests from several union members,
Petitioner explained why he so needed the union members support.
16. While still in the union's meeting area and immediately after the official ending of
the meeting, Petitioner explained to the questioning union members that the
current system of discipline within the Police Department was neither fair,
equitable nor just.
17. While still in the union's meeting area and immediately after the official ending of
the meeting, Petitioner cited examples of how the then system of discipline for
police misconduct was unfair, inequitable and unjust.
18. These examples included reported complaints of misconduct by police officers
which included:
a. malicious mischiefi
b. possible destruction of public properly,
c. public dmnkeness,
d. misuse and misappropriation of Borough property at private party
where alcohol was being consumed,
e. on-duty uniformed officer attending private drinking party,
f. officer intentionally changing police department records to show *he
was at the scene of a reported burglary alarm when he was not, and
later falsifying records in an attempt to show the officer was at the
scene of the alarm when he was not.
g. someone inside the police department had deleted files from the
official police records relating to the son of one of the police
lieutenants.
19. Petitioner also claimed that the true reason behind the management of the Police
Department's action in disciplining Petitioner was out of fear of his newly
appointed position as a union leader.
20. On or about May 5, 12003, the Borough through its Chief of Police summoned
Petitioner to his office and told him that Petitioner was being investigated for
statements he had made to his fellow union members regarding the deletion of
files from the Official Records of the Carlisle Police Department involving the
son of a lieutenant.
21. At this meeting, Petitioner believing not appropriate for the Chief of Police, not a
union member was over stepping the limits of his authority and possibly violating
the labor laws of this Commonwealth, did not give any specific recantation of the
evening's discussion as he believed the matters discussed were related to union
business, were only responses to pointed questions by fellow union members who
raised questions in an effort to help the union members make informed decisions
on union matter.
22. Petitioner also believed that the motivation behind the actions of the Chief of
Police and other management personnel was motivated by reasons other than the
true good of the organization as shown by the Chiefs disregard for the written
rules and regulations concerning the procedures for investigating complaints of
police misconduct, the duties of the chain of command in such investigations, the
adverse effect that such disregard would have on the members of the union and
the need for a new provision in the union conttract for discipline that was fair,
equitable and just.
23. By letter dated May 6, 2003, Petitioner was notified by the Chief of Police that he
was recommending that Petitioner be discharged from his position as a police
officer for answering questions posed him by fellow union members at or
following a scheduled union meeting which related to union matter. (A tree and
correct copy is attached hereto and marked Exhibit B.)
24. The letter stated that Petitioner had accused a specific Lieutenant of deleting or
having someone delete the name of his son form the official records of the
Carlisle Police Department, that if such had been true it was potentially criminal
activity and therefore that Petitioner had accused the Lieutenant of a criminal act,
that the matter had been FULLY INVESTIGATED and that the accusations were
totally unfounded.
25. On May 6, 2003, the Chief of Police specifically notified Petitioner that his
investigation did uncover who had deleted the files and that it had not been the
Lieutenant, and when questioned if the person deleting the files was disciplined
for violating the law, the Chief refused to answer.
26. On May 7, 2003, Petitioner, through his attorney, responded to the Chief's letter
of May 6, 2003, (A true and correct copy is attached hereto and marked Exhibit
C) and denied that Petitioner ever accused anyone of deleting files and that only
files were being deleted, that he had reported the deletion of files to his superiors,
that he was told only two people could delete files, the superior to whom he had
reported the problem and one other person, the Lieutenant whose son's files had
been deleted.
27. By letter dated May 9, 2003, Petitioner was dismissed as a police officer by the
Borough's Council. (A true and correct copy i~ attached hereto and marked
Exhibit C.)
28. On May 9, 2003, Petitioner appealed the Borough's decision to the Borough's
Civil Service Commission.
29. On May 19, 2003, Petitioner filed a grievance with the Chief of Police in
accordance with Step 1 of Article 12 of the Collective Bargaining Agreement (a
true and correct copy is attached and marked Exhibit D), claiming, inter alia, that
his dismissal was based on his answers to questioning by union members at the
union meeting hall, in response to matters relating to union issues, and that such
action violated the letter and spirit of the collective bargaining agreement.
30. By memo dated May 23, 2003, received by Petitioner on May 27, 2003, the Chief
of Police denied Petitioner's request. (A true and correct copy is attached hereto
and marked Exhibit E.)
31. Pursuant to Step 2 of the grievance procedures of Article 12 of the said Collective
Bargaining Agreement, on May 27, 2003, Petitioner by letter forwarded the
matter to the Mayor of Carlisle. (A true and correct copy is attached hereto and
marked Exhibit F.)
32. By letter dated June 2, 2003, received by Petitioner on June 6, 2003, the Mayor of
Carlisle denied the grievance. (A true and correct copy is attached hereto and
marked Exhibit G.)
33. Pursuant to Step 3 of the grievance procedures of Article 12 of the said Collective
Bargaining Agreement, on June 9, 2003, Petitioner filed the grievance with the
President of Borough Council. (A true and correct copy is attached hereto and
marked Exhibit H.)
34. Despite Petitioner's letter and the requirements of the said Collective Bargaining
Agreement's Grievance Procedure, and repeated calls to the Borough Council
President from Petitioner the most recent being the 28th of August, 2003, the
Borough and its President have failed to comply with their duties and obligations
under the Labor Laws of this Commonwealth and the requirements of their
Collective Bargaining Agreement.
35. Petitioner has no adequate remedy at law.
36. Petitioner has been forced to expend legal fees in the presentation of this matter
and therefore requests the Court award reasonable attorney fees for the Borough's
flagrant violations of its duties.
WHEREFORE, Petitioner requests that the Court Order and direct the Borough
of Carlisle and its President to comply with the requirements of Step 3 of the grievance
procedure and schedule a meeting of the Grievance Resolution Committee and thereafter
render a decision within twenty (20) days and to order that the Borough pay Petitioner's
reasonable attorney fees and costs of this action.
Respectfully submitted
uvreme Court ~.~. # 38444
1237 Holly Pike
Carlisle, PA 1701:3
(717) 249-2448
VERIFICATION
The undersigned, Thomas L. Day, Jr., hereby certifies that the statements made in
the foregoing Amended Action in Mandamus are true and correct to the best of his
knowledge, information and belief. It is understood that statements made herein are
subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to
authorities.
Thomas L. Day, Jr. ! f
CERTIFICATE OF SERVICE
I HEREBY CERTIFY THAT A TRUE AND CORRECT COPY OF AMENDED
ACTION IN MANDAMUS, WAS DULY SERVED UPON THE FOLLOWING
PERSONS BY UNITED STATES FIRST-CLASS MAIL, POSTAGE PREPAID:
ROBERT E. DURRANT, ESQUIRE
CAMPBELL, DURRANT & BEATTY
555 GRANT STREET, SUITE 120
PITTSBURGH, PA 15219
GRETCHEN K. LOVE, ESQUIRE
CAMPBELL, DURRANT & BEATTY
555 GRANT STREET, SUITE 120
PITTSBURGH, PA 15219
Date: October 6, 2003
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten a~dsubmittedm duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please ]~st the withinmatterforthenextArghm~ntCour~.
CAPTION OF CASE
(entire caption must be stated in fil]l)
THOMAS L. DAY, JR.
Plaintiff)
BOROUGH OF CARLISLE
Defendant )
No. 4258 Civil TERM
x~gx 2003
State matter to be argued (i.e., plaintiff's rmDtion for new trial, defendant's
d~mmuri~_r to cc~plaint, etc. ):
Defendant's Preliminary Objections
Identify counsel who w~]l argue case:
(a) for pi ~intiff:
Address: Joseph D. Buckley, Esquire
1237 Holly Pike
Carlisle, PA 27013
(b) for defendant:
A~d~es~: Robert E. Durrant, Esquire
Campbell, Durrant & Beatty, P.C.
555 Grant Street, Suite 120
Pittsburgh, PA 15219
I w-Jlq noti/y mil p~r~t~s~tt3_~9~wlz~z~9. ~ c~3ys rd]at r_rlis case has
been //steal for argu~_nt.
4. Argument Coup. Date: I
Attorney for Defendant
THOMAS L. DA~, JR.
Pet tioner
V.
BOROUGH OF C a, RLISLE
Re,, ~ondent
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: No. 03-4258 CIVIL, TERM
:
: CIVIL ACTION - LAW
PRA
TO THE PROTH(
Please witl:
settled by the parti
Date: 10' ~-
gCIPE TO WITHDRAW ACTION IN MANDAMUS
~NOTARY:
draw the above captioned complaint with prejudice as it has been
,~s. Thank you.
Law Offices of Joseph D. Buckley
1237 Holly Pike
Carlisle, PA 1'7013
717-249-2448
Attorney for Petitioner
CERTIFICATE OF SERVICE_
that I am this day ~
manner indicated
Rules of Civil Pre
class postage prep
DATE
1, Joseph Di. Buckley of The Law Offices of Joseph D. Buckley, do hereby certify
erring a copy of the foregoing docu_ment upon the person(s) and in the
below, which service satisfies the requirement of the Pennsylvania
cedure, by depositing a copy of same in the United States mail, first-
lid as follows:
ROBERT E. DURRANT
CAMPBELL, DURRANT & BEATTY, P.C.
555 GRANT STREET, SUITE 120
PITTSBURGH, PA 15219
Law Offices of Joseph D. Buckley
1237 Holly Pike
Carlisle, PA 17013
(717) 249-2448