Beaver County ex rel. Beaver County Board of Commissioners v. David

DISSENTING OPINION BY

Judge LEAVITT.

A preliminary injunction provides relief ancillary to an underlying permanent injunction proceeding. Its purpose is to preserve the status quo pending the outcome of the request for a permanent injunction. The Woods at Wayne Homeowners Association v. Gambone Brothers Construction Company, Inc., 893 A.2d 196, 204 (Pa.Cmwlth.2006). The trial court’s preliminary injunction upsets the status quo, which was established in the collective bargaining agreement between the County and the Beaver County Deputy Sheriffs *1120Association (Union) and has existed for many years. The trial court has ordered this extraordinary relief on the basis of its interpretation of an ambiguous provision in Section 1210(a) of The County Code.1 Even if one agrees with the trial court’s interpretation of this statutory provision, it cannot be said that the legal rights of the County are clear, which is a prerequisite to a preliminary injunction. Because the preliminary injunction does not preserve the status quo pending a decision on the request for a permanent injunction, I dissent, respectfully, from the majority’s decision.

Central to the controversy is the meaning of Section 1210(a) of The County Code, which prohibits a deputy sheriff from being compensated twice for the performance of his “official duties.” It states:

(a) No sheriff, deputy sheriff detective or other county police officer whatsoever, shall perform, directly or indirectly, any official services or official duties for any person, association or corporation, or receive, directly or indirectly, any compensation, gifts or gratuities from any person, association or corporation during the period of his official services. Nothing herein contained shall prohibit such officers from serving -writs and other legal process as authorized by law. Any compensation payable to any such officer for official duties and services shall be paid only out of the proper county, or other public funds, to the amount and in the manner prescribed by law. Gifts, donations, and gratuities of any nature whatsoever made by any person, association or corporation to the county or to any official or agent thereof, shall not constitute public funds within the meaning of this section.

16 P.S. § 1210(a) (emphasis added). The Union construes Section 1210(a) as an ethics statute and places the emphasis on the final phrase of the first sentence, i.e., the proscription on “any compensation, gifts or gratuities from any person, association or corporation during the period of his official services.” 16 P.S. § 1210(a) (emphasis added).

Here, deputy sheriffs are performing official duties for the County and are paid for that work by the County. The assignments for these duties are made by the Sheriff and the County invoices the “person” who has requested the Sheriffs office to provide services after the close of the deputy sheriffs regular shift, i.e., a time not “during the period of [the deputy sheriffs] official services.” 16 P.S. § 1210(a). I agree with the Union that the purpose of Section 1210(a) is to prohibit a deputy sheriff from receiving double compensation for the same service, not to proscribe deputy sheriffs from providing official services after their regularly scheduled shift is over.

The trial court found that the deputy sheriffs were performing security services.2 It is not clear what it meant by “security services.” Sheriffs are “peacekeeping” officers, and this is what sheriffs have been doing since the Middle Ages. Sheriffs do not have the power to investigate crime, but they hold the “common law arrest powers” to respond to “in-presence breaches of the peace or felonies.” Commonwealth v. Marconi, — Pa. -, -, 64 A.3d 1036, 1043 (2013). The presence of a deputy sheriff at a shopping mall during the busy holiday shopping season helps keep the peace. It may be enough to stymie a luxury car-jacking gang oper*1121ating at a mall.3 The public benefits, not just the mall owner, when a crime does not occur because of the peace-keeping presence of a sheriff.

The payment structure at issue was set in place by the County and is part of its collective bargaining agreement with the Union. Those persons requesting these additional “official duties” reimburse the County for the compensation of the extra hours. The County is concerned that the amount invoiced is not enough to cover wear and tear on the sheriff’s vehicle and other potential losses. If the County is dissatisfied with the bargain, it should address that matter in a new contract. That the collective bargaining agreement needs to be amended does not warrant a preliminary injunction in the meantime.

If the harm warrants the issuance of a preliminary injunction, then there is a no principled basis to exempt the school districts from the terms of that injunction. The trial court did so on the theory that a “person” is a term that does not include government agencies, such as a school district. This Court has held the opposite. See, e.g., Meyer v. Community College of Beaver County, 30 A.3d 587, 596 (Pa.Cmwlth.2011).4

Finally, there is nothing untoward about a private person requesting the assistance of law enforcement officers, of every sort. Municipal police assist at funerals. Sheriff deputies have been found not to act outside their “official capacity” when called upon by employers to be present to escort fired employees from the workplace. D’Errico v. DeFazio, 763 A.2d 424, 431 (Pa.Super.2000).

For these reasons, I would vacate the preliminary injunction.

Judge LEADBETTER joins in this dissent.

. Act of August 9, 1955, P.L. 323, as amended, 16 P.S. § 1210(a).

. These are not private security services; there was no evidence that their services were those of a private bodyguard.

. http://www.nj.com/essex/index.ssf/2013/12/ short_hills_mall_shooting_malLstopped_ using_essex_sheriffs_for_outside_security_ three_years_ago.html

. The Pennsylvania Supreme Court granted allocatur on the issue of whether the definition of "person” includes a government entity. Meyer v. Community College of Beaver County, 616 Pa. 539, 51 A.3d 177 (2012).