Fraternal Order of Police Lodge No. 5 v. City of Philadelphia
Fraternal Order of Police Lodge No. 5 v. City of Philadelphia
Opinion of the Court
Opinion by
The Fraternal Order of Police, Lodge No. 5, and Robert S. Hurst in his capacity as Lodge President (collectively, FOP), appeal from an order of the Court of Common Pleas of Philadelphia County (court of common pleas) denying the FOP’s preliminary injunction to stay the implementation of a urinalysis drug screening program by the Police Commissioner of the City of Philadelphia (Commissioner). We affirm.
The factual and procedural history of this matter is undisputed. On May 10, 1988, the Commissioner issued a memorandum to the FOP indicating his intent to impose a departmental drug policy, Directive 55, with guidelines and procedures for drug screening of officers through urinalysis. It specifically limits testing to situations where: one, there is reasonable suspicion of illegal drug use or drug abuse; and two, as part of routine physical examinations. The reasonable suspicion provision became effective on May 17, 1988; the remainder was to become effective on August 10, 1988.
By the terms of Directive 55, routine exams are defined as those regularly scheduled for the Commis
In Mazzie v. Commonwealth, 495 Pa. 128, 432 A.2d 985 (1981), our Supreme Court has defined the general standard of review for the grant or denial of a preliminary injunction. In Mazzie, the Court stated:
‘[Ojn an appeal from the grant or denial of a preliminary injunction, we do not inquire into the merits of the controversy, but only examine the record to determine if there were any apparently reasonable grounds for the action of the court*212 below. Only if it is plain that no grounds exist to support the decree or that the rule of law relied upon was palpably erroneous or misapplied will we interfere with the decision of the Chancellor.’
Id. at 133, 432 A.2d at 988 (1981) quoting Roberts v. Board of Directors of School District of Scranton, 462 Pa. 464, 469, 341 A.2d 475, 478 (1975).
A request for a preliminary injunction of any kind should be granted only where a party shows: (a) a high degree of probability of success on the merits; (b) irreparable injury if the status quo is not maintained; and (c) no adequate remedy at law. Burchfield v. Department of Education, 41 Pa. Commonwealth Ct. 121, 399 A.2d 796 (1979).
The Commissioner and the City of Philadelphia (City) argue that the FOP has not established the likelihood that it will prevail on the merits of its appeal and that the court of common pleas acted reasonably.
The FOP argues that a directive promulgated by the Commissioner is not the necessary and proper means under the Philadelphia Home Rule Charter (Charter)
In Marion, this Court addressed the question of whether the Philadelphia Police Department could con
The Commissioner argues that it has complied with the requirements of Marion and DeVito by promulgating in advance a detailed written notice of its regulation regarding urinalysis testing. The Commissioner cites McGlone v. City of Philadelphia, 112 Pa. Commonwealth Ct. 205, 535 A.2d 266 (1987) wherein this Court held that a police department has the authority to order psychiatric exams under police directives. In McGlone, the department regulation at issue, Directive 109, concerned commanding officers’ requests that officers be given psychiatric examinations and set forth a policy and procedure for such examinations of police officers. This police department regulation was not the subject of a civil service regulation. Our Court reviewed that directive and specifically held that this written notice of its regulation was just the sort of authorization missing in the factual circumstances of DeVito. McGlone, 112 Pa. Commonwealth
The FOP argues that Directive 55 affects conditions of employment that Section 7-401 of the Charter, 351 Pa. Code §7.7-401 requires to be addressed by civil service regulation. The FOP argues that specifically, Directive 55 has a controlling effect on continued employment regulated by Sections 7-303, 7-401(p) and 7-401(q) of the Charter, 351 Pa. Code §§7.7-303, 7.7-401(p) and 7.7-401(q); promotions regulated by Section 7-401(e), 351 Pa. Code §7.7-401(e); and transfer and reinstatement regulated by Section 7-401(m), 351 Pa. Code §7.7-401(m).
Furthermore, the FOP has presented no evidence supporting its contention that either irreparable harm or
In light of Marion and subsequent cases, we affirm the order of the court of common pleas.
Order
And NOW, this 17th day of April, 1989, the order of the Court of Common Pleas of Philadelphia County, dated May 16, 1988, at No. 2864 May Term, is hereby affirmed.
The “reasonable suspicion” clause of Directive 55 is the only provision before us. See note 3 herein.
Directive 55, Urinalysis Policy for Illegal Drug and Controlled Substance Use, Reproduced Record (RR) at R-la—R-13a.
On November 4, 1988, the FOP filed a Complaint in the U.S. District Court for the Eastern District of PA, at No. 88-8511, (See Exhibit “A” of the City’s brief.) seeking to preliminarily enjoin the portions of the Directive requiring urinalysis examinations as part of routine physical examinations. That matter is still pending in the district court.
351 Pa. Code §§1.1-100—12.12-503.
The FOP also raises the argument that Directive 55 does not meet the requirements of Section 8-406 of the Charter, 351 Pa. Code §8-406, because it has never been submitted to or approved by the Administrative Board. The FOP did not raise this issue before the court below and therefore it is waived pursuant to Pa. R.A.P 302(a). See FOP’s Complaint in Equity, RR at R-15a and Notes of Testimony, May 16, 1988, (N.T), beginning atR-83a.
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