County of Delaware v. Workmen's Compensation Appeal Board

*286SILVESTRI, Senior Judge,

dissenting.

Zita Lang, widow of Ernest Lafayette Lang (decedent), filed a fatal claim petition on September 24,1979. The fatal claim petition alleged that on December 10, 1978, the decedent died as the result of being shot “when he tried to stop a robbery at a tavern in Chester Pa.” and that the decedent “was a County Police Officer.” The County filed an answer to the fatal claim petition in which it, inter alia, and as herein relevant, demanded “Proof of compensable injury arising in the course of employment____”

Hearings 1 were held before a referee, who, on October 8, 1981, dismissed claimant’s fatal claim petition concluding that the decedent was not in the course of his employment at the time of his death. On November 10, 1981, claimant filed an appeal to the Workmen’s Compensation Appeal Board (Board). The Board, by order dated September 8, 1983, reversed the Referee and granted claimant’s petition concluding that the decedent was in the course of his employment at the time of his death. The Board remanded the matter to the Referee for a determination of the amount of compensation payable. Two additional appeals followed by remands. The matter was finally determined and the claimant awarded benefits on February 26, 1990 when the Board entered an order,

that the Decision of the Referee dated February 25, 1987 is reinstated and republished in its entirety.

County of Delaware filed a timely petition for review from the Board’s February 26, 1990 order.

On July 14, 1965, the County Commissioners of Delaware County by resolution created a “Protective Force of Courthouse and County guards, watchmen and park police.” The resolution, as herein relevant, provided as follows:

*2872. That the said protective force shall be a separate and unified department whose duties are and shall be to guard and protect all County and Institution District buildings, grounds and property, including County- parks and recreation areas, prisons and detention places, and to enforce the provisions of the County Code and other laws relating thereto.
3. That said protective force shall be maintained, uniformed, equipped and designated as “Courthouse and Park Police”, or by such other name or title as the County Commissioners shall from time to time decide and designate.
5. That the members of said protective force shall be under the control and charge of the County Commissioners and shall be assigned to such areas, buildings, grounds and property of the County and to such duties as the County Commissioners shall determine and direct from time to time.

R.R., at 186a-187a.

On May 20, 1975, Delaware County adopted a Home Rule Charter2 effective the first Monday in January of 1976.3 The Charter in Section 2034 provides that, “The governing body of the county shall be the County Council and the legislative power of the county is vested in and exercisable only by the County Council----”

The Charter in Section 4265 states: “Council shall establish a Department of Court House Police which shall maintain security, public safety and orderly conditions in respect to buildings and spaces comprising the County Court House complex, facilities and property, employe parking facilities, and such other duties as required to enforce general security in the Court House complex.”

*288On July 5, 1978 the Delaware County Council adopted an ordinance “designating procedures to be followed by the Council, the County Executive Director and other County officials and departments as mandated by the Home Rule Charter of the County of Delaware, repealing obsolete and inconsistent ordinances, and providing an effective date therefore [sic].” Under Section 10 Court House and Park Police, it is provided as follows:

COURT HOUSE AND PARK POLICE
Function
The Court House and Park Police shall maintain security, public safety and orderly conditions in respect to buildings and space comprising the County Court House complex, facilities and property, employee parking facilities and such other duties as required to enforce general security in the Court House complex and all other County property and facilities.
Security Duties
The security duties of the department shall be to:
(a) Maintain security, public safety, and orderly conditions in respect to buildings and spaces comprising the County Court House Complex and facilities, and such other duties as required to enforce general security in the Court House Complex and other County facilities;
(b) Detect and apprehend offenders and suspected persons on County property;
(c) Maintain records and files of crimes and criminals;
(d) Develop and conduct educational programs;
(e) Augment the prison force or the County Sheriffs Department in times of civil strife or labor disruptions or other emergencies threatening the security of the Court House and other County property.
(f) Maintain a system of employee identification cards;
(g) Develop a fire and safety manual and a fire warning system.
*289Additional Duties
The following additional duties shall be undertaken by the Court House and Park Police:
(a) Control of traffic where necessary on County property;
(b) Observe and report areas needing repair in County Parks, and follow-up to insure repairs have been completed;
(c) Aid the County Solicitor in collection of facts germaine to lawsuits prosecuted by or against the County;
(d) Investigate accidents in which County vehicles are involved and provide all necessary documentation to insurance companies for related claims.

R.R., at 188a-190a.

The majority, after reviewing the testimony, concludes at page 892 of their opinion, “Accordingly, we agree with the Referee’s legal conclusion that the Court House Police have no authority to act while off of County property.” Notwithstanding this statement, the majority concludes the decedent was in the course of his employment at the time of his death and affirmed the February 26, 1990 order of the Board. The majority’s conclusion is based on cited provisions in a “Manual”, testimony relative thereto, and an expression of condolence by way of a resolution adopted by the County Council. I dissent.

THE MANUAL6

Edward C. Leiby, Chief of Delaware County Courthouse and Park Police (Leiby) testified that prior to 1964 the County had a few watchmen guarding the Courthouse and Fair Acres, but no other policing of park areas or other buildings. In 1964 he was hired by the then Chairman of the County Commissioners to organize the Department for the particular purpose of policing County grounds and facilities and parks. At that time, in 1964, Leiby prepared *290the manual, obtaining most of the information that was in effect before the manual was put together under one cover.

As the record demonstrates, the County Commissioners of Delaware County did not create the Courthouse and Park Police until July 14, 1965. Admittedly, Leiby did not present the “Manual” to the County Commissioners until 1975. He testified as follows:

Q Now, the duty manual which has been prepared here, was that presented to anyone else in the county for approval or review prior to its institution or after its institution? .
A It was given to the County Commissioners prior to the Home Rule Charter.
Q When was that done, sir?
A The Home Rule Charter was in ’76, it must have been in ’75. Copies were given to each of the three County Commissioners for their information.

R.R., at R.R. 128a-129a.

The Manual was never approved by the County Commissioners. There is no evidence that the alleged manual was ever presented to the County Council after the Home Rule Charter became effective on January 5, 1976; in any event, the record is devoid of any approval of the alleged Manual by either the County Commissioners prior to January 5, 1976 or by the County Council after January 5, 1976.

Additionally, Leiby points to no directive or other authority from either the County Commissioners after July 14, 1965 and prior to January 5, 1976, or from the County Council after January 5, 1976, authorizing him to prepare and promulgate a manual delineating the powers and duties of the Courthouse and Park Police.

Both the resolution of July 14, 1965 and the Ordinance of July 5, 1978 specifically limited the physical area where the Courthouse and Park Police were to function to the county courthouse and other property and facilities of the County. Significantly, their security duties relating to “offenders” is stated to be:

*291Detect and apprehend offenders and suspected persons on County property.

Assuming, arguendo, that the Manual was in effect, it must be read in conjunction with the resolution of 1965 and ordinance of 1978. Where, as here, it is contended that one of two or more documents govern and they are not exclusive, then they must be read together. 1 Pa.C.S. § 1932. In so doing, the Courthouse and Park Police had authority to detect, apprehend and arrest, limited only to the physical area of Delaware County property and facilities.

THE CONDOLENCE RESOLUTION7

What has been written under “The Manual” also demonstrates that the condolence resolution adopted by the County Council relative to the decedent, after his death, does not extend the authority of the Courthouse and Park Police beyond the County property and facilities.

*292There is further reason not to give effect to the condolence resolution as given by the majority. The Home Rule Charter in section 4098 is as follows:

Council shall decide which actions will be by ordinance and which by resolution except that acts of permanent policy, and acts which provide for raising revenue, appropriating funds or incurring indebtedness, and acts which provide a penalty or establish a rule or regulation for the violation of which a penalty is imposed, shall be by ordinance. (Emphasis added.)

To give to Courthouse and Park Police the authority of police officers to apprehend, detain and/or arrest for criminal conduct on non-County property and facilities is a permanent policy and cannot be effectuated directly or indirectly by way of a County Council resolution.9 This is particularly so where the resolution is for the expression of condolences and not for establishing policy.

I would vacate the February 26, 1990 order of the Board and reinstate the Referee’s Order of October 8, 1981 dismissing the claimant’s fatal claim petition.

. Hearings held on September 27, 1979 (no testimony); December 3, 1979 (testimony taken); February 25, 1980 (no testimony); May 28, 1980 (testimony taken); August 20, 1980 (no testimony); November 10, 1980 (no testimony); February 4, 1981 (testimony taken; April 1, 1981 (testimony taken); July 20, 1981 (no testimony); concluded.

. 323 Pa.Code §§ 101-1201.

. The first Monday in January of 1976 was January 5.

. 323 Pa.Code § 203.

. 323 Pa.Code § 426.

. The alleged manual is not in evidence except for Section 1-0, Exhibit C-13, Section 2-0, Exhibit C-14, and Section 3-0, Exhibit D-l.

. COUNCIL OF DELAWARE COUNTY

Media, Pennsylvania

RESOLUTION

WHEREAS, Corporal Ernest L. Lang, Jr. was a member of the County of Delaware Court House & Park Police Department; and

WHEREAS, Corporal Lang attempted to prevent an armed robbery was confronted by two felons the morning of December 10, 1978; and

WHEREAS, Corporal Lang recognized his sworn duty and attempted to protect the life and property of the helpless victims. Gunfire erupted and Corporal Lang was struck down, mortally wounded by his assailants in an outrageous act of lawlessness and a senseless insult to peoples of all communities; and,

WHEREAS, Corporal Lang succumbed as a result of his grievous wound; and

WHEREAS, the residents of the County of Delaware, recognizing that death has claimed another martyr in the quest for law and order, join their prayers with all those throughout the County who mourn the loss of a devoted husband, father and valiant officer.

NOW, THEREFORE, BE IT RESOLVED, that we, the Council of Delaware County, while bowing to the infinite judgment of Divine Providence in taking from his family and friends and from all worldly affairs Corporal Ernest L. Lang, Jr., hereby express our deepest sympathy and condolences to his beloved wife and four children and offer this Resolution as evidence of the sincere sentiments of this legislative body.

(Signed by the Council of Delaware County)

Proclaimed December 12, 1978

. 323 Pa.Code § 409.

. It is to be noted that the County Council, in adopting the functions, security duties and additional duties of the Court House and Park Police, did so by ordinance. R.R. at 188a-190a.