              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Charles A. Blesse, Keith A. Krapf,       :
and Todd Weiss,                          :
                   Appellants            :
                                         :   No. 1448 C.D. 2015
            v.                           :
                                         :   Argued: March 7, 2016
Borough of Coaldale                      :



BEFORE:     HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                            FILED: May 2, 2016


            Charles A. Blesse, Keith A. Krapf, and Todd Weiss (Appellants) appeal
from the July 13, 2015 order of the Court of Common Pleas of Schuylkill County
(trial court), which granted the Borough of Coaldale’s (Borough) motion for
summary judgment and dismissed Appellants’ complaint alleging that the Borough’s
furlough of the police department did not constitute a good faith reduction due to
economic reasons.


                           Facts and Procedural History
            By letters dated February 14, 2012, the Borough advised Appellants that
it was reducing its police force by three full-time officers for budgetary reasons and,
pursuant to section 1190(d) of the Borough Code (Code),1 this objective shall be
accomplished by furloughing the individuals most recently appointed to the force
until the reduction is achieved. On August 28, 2013, Appellants filed a complaint in
mandamus and for declaratory relief, seeking to recover for lost wages and benefits
and alleging that the Borough violated section 1190 of the Code because the furlough
did not constitute a good faith reduction due to economic reasons. The Borough filed
an answer and new matter, denying the material allegations of Appellants’ complaint
and alleging, inter alia, that Appellants failed to state a claim upon which relief could
be granted.
               On March 10, 2015, after the parties had completed discovery, the
Borough filed a motion for summary judgment, alleging that judgment as a matter of
law was proper because the undisputed record evidence demonstrates that the
furlough caused a reduction in the total amount of hours the police department
worked and that the Borough realized a savings in its budget. Appellants filed a brief
in opposition to the Borough’s motion, arguing that they produced sufficient evidence
of the Borough’s bad faith to raise a genuine issue of a material fact and preclude
entry of summary judgment.


                                       Discovery
               Charles Blesse (Blesse) testified that the Borough hired him as a part-
time patrol officer in September 2006 and promoted him to full-time status in
October 2008. Blesse confirmed that he was furloughed effective March 1, 2012, and
reinstated to a full-time position in April 2014. Blesse stated that he first became
aware that the Borough was considering furloughing police officers in January 2012


      1
          8 Pa.C.S. §1190(d).


                                           2
when, during collective bargaining negotiations between the Borough and the local
Fraternal Order of Police (FOP) representative, the Borough’s attorney advised the
FOP representative that the police must accept a reduction in wages and benefits or
the police department would look significantly different. Blesse testified that the
Borough Council2 subsequently voted to furlough Appellants, effective March 1,
2012. (Reproduced Record (R.R.) at 43a-44a, 60a.)
               Blesse acknowledged that he never discussed the possibility of a
furlough with the Borough Council or the Mayor after meeting with the Borough’s
attorney, but stated that he believed the furlough was a personal vendetta against the
police department. Specifically, he explained that Sergeant Krapf had been injured
responding to a call and, consequently, there had been some external discussion
regarding whether the call was handled properly. Blesse stated that the discussion
was largely generated by two individuals, Mayor Corkery and Councilman Yelito.
However, Blesse conceded that he became aware of the alleged discussion only
through word of mouth. (R.R. at 44a.)
               Blesse testified that, prior to the furlough, the police department
consisted of eight police officers; four full-time officers and four part-time officers.
Blesse confirmed that the police department provided coverage twenty-four hours a
day, seven days a week before the furlough. However, after the furlough, Blesse
testified that the police department consisted of seven part-time officers and one full-
time officer, the Police Chief. He stated that the Borough hired new officers to the
part-time roster following the furlough, but noted that the Borough did not provide
police coverage twenty-four hours a day, seven days a week after the furlough.
Blesse also stated that, when a shift became available that needed to be covered, a


      2
          The Borough is governed by a seven-member council. See 8 Pa.C.S. §813.


                                               3
preexisting part-time officer would be called instead of him. He speculated that this
occurred because there was a vendetta against him and the other former full-time
officers. According to Blesse, the Borough’s police department was not reduced in
size after the furlough. Instead, he testified that the Borough’s budget remained
essentially the same and that the number of officers actually increased. Blesse further
testified that the layoffs did not occur because of budgetary reasons; rather, the
layoffs arose from issues related to failed collective bargaining negotiations with the
Borough. (R.R. at 45a-49a.)
             Keith Krapf (Krapf) testified that he was hired as a part-time patrol
officer in June 2004, that he was promoted to full time in September 2005, and that
he was promoted to sergeant in 2007. Krapf confirmed that he was furloughed in
March 2012 and that, prior to the furlough, the Borough’s police department
consisted of eight officers. Krapf stated that he first became aware that the Borough
was considering the furlough of police officers during contract negotiations between
the Borough and the FOP.        He explained that the prior collective bargaining
agreement between the FOP and the Borough expired at the end of 2011, but testified
that the new collective bargaining agreement had been agreed to and was nearly
complete in December 2011, when the FOP agreed to meet with the Borough. At the
meeting, Krapf explained that the Borough’s attorney withdrew the proposed deal and
stated that, if the police officers wanted to remain employed, they must accept a
reduction in wages and benefits or the police force would look completely different in
a week. Krapf testified that the FOP rejected the Borough’s terms and the Borough
Council subsequently voted to furlough the police officers. Krapf noted that the FOP
was authorized and willing to further negotiate with the Borough; however, the
Borough did not continue negotiations with the FOP. (R.R. at 51a-54a, 60a-61a.)



                                          4
             Krapf stated that, following the furlough, the police department
consisted of nine officers but only the Police Chief remained full time. He further
stated that the Borough did not provide police coverage twenty-four hours a day,
seven days a week after the furlough and noted that the state police would respond to
emergency calls if a Borough officer was absent. Krapf explained that his wages and
benefits were reduced after the furlough and testified that the Borough Council
maintained that financial issues were the reason for the furlough; however, Krapf
stated that he did not believe the Borough’s purported rationale because the police
department’s budget and expenditures were consistent with past years and certain
employees received wage raises after the furlough, including preexisting part-time
officers. Moreover, he testified that the collective bargaining agreement was virtually
complete when the Borough revoked the agreement and proposed new terms, that a
Borough secretary advised him that the Borough was not in financial hardship, and
that the police force was not reduced because it had more officers after the furlough
than before. (R.R. at 55a-57a, 61a.)
            Krapf further testified that he was never formally offered a part-time
position with the police department. Instead, he explained that the Police Chief
generated a new schedule and advised him that the preexisting part-time officers
would be scheduled for a minimum of thirty-two hours per week and the remaining
hours would be distributed between the remaining officers; however, the remaining
officers were prohibited from working more than thirty-two hours and usually only
worked eight or sixteen hours per week. Krapf stated that he inquired with the Police
Chief numerous times about scheduling, but the Police Chief advised Krapf that he
was doing what he was told. Krapf testified that he had heard that the Borough
Council and Mayor were directing the Police Chief to schedule the hours that way
because they did not like him. Krapf could not say why they did not like him, but


                                          5
speculated that it was because he had arrested the Mayor before he held office and
arrested Councilman Yelito’s girlfriend before he was elected. Krapf noted that a
subsequent arbitration award mandated that certain officers be scheduled for thirty-
two hours per week and that he was ultimately reinstated to a full-time position in
April 2014. (R.R. at 58a-59a, 62a.)
               Todd Weiss (Weiss) testified that the Borough hired him as a part-time
officer in 1985 and promoted him to full-time criminal investigator in July 2007.
Weiss confirmed that he was furloughed in March 2012 for purported budgetary
reasons; however, he testified that he believed he was furloughed because the
Borough did not care for any of the full-time officers. Weiss explained that it was his
understanding that the Borough and the FOP had finalized a new collective
bargaining agreement in December 2011, but noted that he received a letter in
January 2012 scheduling a meeting with the Borough to discuss contract negotiations.
Weiss further explained that, at the meeting, the Borough’s attorney stated that the
police officers could accept reduced wages and benefits or the police force would
look entirely different on March 1, 2012.        He noted that the FOP rejected the
Borough’s demands and Appellants were furloughed effective March 1, 2012. (R.R.
at 76a-80a.)
               Weiss further testified that he believed that the FOP’s rejection of the
Borough’s terms was the reason for the furlough. However, Weiss acknowledged
that he did not discuss the reasons for the furlough with the Mayor or any member of
the Borough Council. He stated that he did not believe the police force was actually
reduced after the furlough because the hours were not reduced; instead, the hours
were redistributed to other officers, usually the preexisting part-time officers. Weiss
noted that the preexisting part-time officers advised him that they had been told that
they would be promoted to full-time work once the existing full-time officers were


                                            6
gone. Weiss also noted that the Police Chief was responsible for generating the
officers’ schedule, but at some point the Mayor took over scheduling duties and, after
the furlough, he was prohibited from working more than thirty-two hours per week.
Weiss testified that he was ultimately reinstated to a full-time position in April 2014.
(R.R. at 78a-80a.)
             Thomas Keerans (Keerans) testified that he was elected to the Borough
Council in 2008, that he was a member of the Borough’s finance committee
throughout his tenure, and that he had been a member of the Borough’s police
committee through 2013.       Keerans stated that the police committee negotiates
contracts with the FOP and attempted to negotiate a new contract in 2011. He
explained that, at the end of 2011, the Borough had approved a new agreement with
the FOP but, before the FOP could approve the contract, the Borough withdrew its
approval.   Keerans stated that the Borough withdrew its approval because of
budgetary woes; specifically, Keerans testified that the Borough was borrowing more
money every year and could not afford all of the police officers’ salaries and benefits.
He further testified that the Borough met with the FOP and advised the officers that
changes must be made or they would likely be furloughed. (R.R. at 143a-44a.)
             Keerans testified that a meeting occurred between the police committee,
the Borough’s attorney, and the FOP.        Keerans stated that, at the meeting, the
Borough’s attorney advised the FOP that the officers must accept a reduction in
wages and benefits or the police department would look substantially different as of
March 1, 2012. He further testified that the Borough Council voted to furlough three
full-time officers at a February 14, 2012 council meeting. Keerans confirmed that the
officers were furloughed because of budgetary reasons; specifically, he stated that the
Borough was operating in the red. (R.R. at 147a-48a.)



                                           7
              Keerans explained that the Borough had exhausted a $60,000.00 line of
credit, had borrowed funds via a tax anticipation loan to maintain the Borough
government, and had terminated two full-time employees in the Borough’s streets
department. Keerans estimated that the Borough was approximately $100,000.00
over budget and was borrowing money from a sewer maintenance account. Keerans
noted that an increase in workers’ compensation insurance premiums, fuel costs, and
inflation contributed to the Borough’s decision to furlough the officers. However, he
acknowledged that the Borough’s revenue increased approximately $200,000.00 from
2010 to 2011, that the Borough’s Secretary received a raise in 2012, and that the
Borough had spent approximately $30,000.00 in capital improvements during 2012.
(R.R. at 144a-48a.)
              Timothy Delaney (Delaney), the Borough’s Police Chief, testified that,
prior to February 2012, the police officers’ schedules were consistent; that is, Krapf
worked second shift, Blesse worked nightshift, and Weiss worked during the
weekends and would cover shifts as necessary. Delaney explained that part-time
officers would be used if full-time officers were on vacation, using leave time, or if
more than one officer was required. Delaney stated that he was responsible for
generating the schedule. However, he noted that, after the furlough, he was advised
to schedule Appellants for only eight or sixteen hours per week. Delaney testified
that he did not comply with the scheduling directive initially; however, the Mayor
and members of the Borough Council advised him that if he did not comply he would
be laid off. (R.R. at 212a-17a.)
              Delaney further testified that he had conversations with the Mayor prior
to the furlough and it was his understanding that only one officer would be
furloughed.    He also stated that he discussed the possibility of furloughs with
members of the Borough Council and concluded that the furlough was intended to


                                           8
single out Krapf.     Delaney explained that members of the Borough Council
frequently encouraged him to suspend Krapf and ordered him to investigate whether
Krapf had committed acts of misconduct.          Delaney confirmed that Krapf had
previously issued a citation to the Mayor and noted that Krapf had raised the issue of
Councilman Yelito’s eligibility to hold office with the Attorney General’s Office
because of a prior felony conviction. (R.R. at 218a-28a.)
             Delaney confirmed that the Borough purported to furlough Appellants
for budgetary reasons, but stated that he believed the actual reason for the furlough
was because it was the only way the Borough could get rid of Krapf. Delaney stated
that he asked the Borough Council numerous times to identify the shortage in the
budget, but was only advised that the police department was bankrupting the
Borough; however, he noted that the Borough Council never gave him any specific
information regarding how or why the Borough was bankrupt. (R.R. at 227a-233a.)
             Scott Cramer (Cramer) testified that he was employed as a part-time
patrolman for the Borough from September 2007 to February 2013. He stated that he
was scheduled to work approximately thirty-two hours per week before the furlough
and would occasionally work more but, after the furlough, he regularly worked more
than thirty-two hours per week. Cramer also stated that the Mayor advised him that
new full-time officers would be hired after the furlough and that he wanted Cramer to
be a full-time officer. Cramer testified that the Mayor also advised him that it was his
desire to permanently remove Krapf from the police department and noted that
Councilman Yelito was present for some of these conversations. He further testified
that, after the furlough, the Mayor was responsible for generating the schedule and,
consequently, the officers’ schedules changed dramatically; specifically, he noted that
Appellants usually worked only one day per week. He confirmed that there were
occasions after the furlough where the state police were required to cover a shift for


                                           9
the Borough and testified that this did not occur prior to the furlough. (R.R. at 279a,
286a-89a, 292a-93a.)
              Joseph Krebs (Krebs) testified that he was hired as a part-time police
officer for the Borough in April 2011 to work at least thirty-two hours per week. He
stated that he received an increase in wages and hours when Appellants were
furloughed.     Krebs explained that the Mayor was responsible for generating the
schedule after the furlough and Appellants were only authorized to work two days a
week. Krebs stated that the Mayor met with him to discuss scheduling and advised
him that he was being given scheduling preference over Appellants, but did not
mention any budget issues. He also stated that Councilman Yelito was present for
some scheduling meetings, that they would frequently discuss Krapf, and that they
gave Krebs the impression that he would ultimately be hired for a full-time position.
(R.R. at 311a, 315a-317a, 322a-37a.)
              Susan Solt (Solt) testified that she was the president of the Borough
Council from 2001 through 2012 and served on every committee. Solt stated that it
was brought to the Borough Council’s attention before formulating the 2012 budget
that the Borough had insufficient funds and, as such, she voted to furlough
Appellants. She explained that the Borough depended on lines of credit and tax
anticipation loans to operate so the finance committee suggested making changes to
balance the budget. However, Solt conceded that subsequent Borough budgets also
included a line of credit and tax anticipation loan similar to those that prompted the
furlough. (R.R. at 353a, 357a-59a, 369a-70a.)
              Joe Hnat (Hnat) testified that he was a member of the Borough Council
from 1998 through December 2012. He stated that the Borough Council voted to
furlough three full-time police officers based on information from the finance
committee that the Borough did not have sufficient funds to continue operating the


                                          10
police force in the same capacity. Hnat further testified that he voted to furlough
Appellants based on the finance committee’s recommendation, but conceded that he
did not look at any specific item in the proposed budget to confirm the finance
committee’s representation. (R.R. at 382a-83a, 385a, 389a, 393a.)
            David Yelito (Yelito) testified that he was elected to the Borough
Council for a four-year term in January 2010 and confirmed that he served on the
finance and police committees during his tenure. He stated that he largely relied on
the Borough Secretary when formulating the Borough’s budget, but testified that he
also considered the Borough’s spending habits when formulating the 2012 budget;
specifically he stated that the lines of credit and tax anticipation loans were a
significant problem and he was concerned with whether the Borough had sufficient
funds to balance its budget. Yelito testified that the Borough owed over $300,000.00
and that it had been borrowing money for years from sewer maintenance fees but
failed to replace the borrowed monies. He further testified that a previous Borough
Council had used a “special formula” line item that indicated that approximately
$40,000.00 was available to the Borough; however, Yelito said that he was advised
that the monies did not actually exist. Yelito confirmed that he voted to furlough
three full-time officers and two other Borough employees, but denied advising
Cramer or Krebs that they would eventually be hired as full-time officers. (R.R. at
411a-12a, 417a, 420a-30a, 441a-42a.)
            Nancy Lorchak (Lorchak) testified that she served on the Borough
Council from 2008 through 2015. Lorchak stated that she served on the finance and
police committees during her tenure on the Borough Council. She confirmed that she
voted to furlough three full-time police officers in February 2012 based on
recommendations from the Borough’s attorney and the police committee that the
Borough could not afford the proposed contract with the police.            Lorchak


                                        11
acknowledged that the Borough had been operating at the same level for the past few
years, but stated that the decision to furlough Appellants was motivated by a
substantial increase in insurance charges. Lorchak testified that the Borough tried to
renegotiate health benefits, but the FOP rejected the Borough’s terms because the
health benefits were not the same or better than what was offered in the previous
contract. She also noted that the FOP did not request arbitration to resolve the
contract dispute in late 2011. Lorchak acknowledged that the Borough had given
employees raises notwithstanding the Borough’s budget concerns. (R.R. at 469a-70a,
473a-75a, 478a, 486a-88a, 494a, 504a.)
            Michael Doerr (Doerr) testified that he began serving on the Borough
Council in January 2012. He stated that he voted to furlough three full-time officers
in February 2012 because Yelito had advised him that the Borough was in financial
ruin and would be bankrupt if the furlough was not performed. Doerr acknowledged
that he did not review any documentation prior to the vote and relied on what Yelito
had told him when he made his vote. (R.R. at 511a-515a.)
            Richard Corkery (Corkery) testified that he served as mayor of the
Borough from January 2010 until early 2014. He stated that he had no involvement
with the police department’s schedule prior to the furlough; however, Corkery
testified that, after the furlough, he was responsible for scheduling and the only
parameters were to schedule the state police for ten shifts a month and the three
furloughed officers for thirty-two hours per week. He explained that Yelito gave him
the scheduling parameters and noted that he had no conversations with any Borough
Council members about the budget prior to the furlough; however, he noted that the
Borough Council had advised him that it was going to vote regarding a possible
furlough because the Borough was bleeding money and some drastic personnel action
had to be taken. Corkery acknowledged that there had been no budget issues during


                                         12
his first two years as mayor and confirmed that he had expressed concerns to Police
Chief Delaney about Krapf’s attitude. (R.R. at 535a-38a, 542a-44a.)


                                    Trial Court’s Decision
              By order dated July 13, 2015, the trial court granted the Borough’s
motion for summary judgment and dismissed Appellants’ complaint. In its opinion,
the trial court reasoned that the testimony supporting Appellants’ assertion that the
Borough acted in bad faith was “speculative, unreliable and formed from personal
opinions suggesting bias and prejudice.” (Trial court op. at 7.) The trial court
rejected the relevant testimony as “not credible” and determined that the “credible
evidence establishes that various council members had legitimate concerns that ‘there
was no money.’” Id. Accordingly, the trial court concluded that “the only logical
conclusion based on the credible evidence is that the [Appellants] were laid off in
good faith . . . .” Id. at 8.


                                           Discussion
              On appeal to this Court,3 Appellants argue that the trial court committed
an error of law when it made factual and credibility determinations at the summary
judgment stage. In response, the Borough argues the undisputed record evidence
indicates that the furlough was due to economic reasons because it realized economic
savings and its police department worked less hours after the furlough than before.
Additionally, the Borough asserts that this Court should affirm the trial court’s order


       3
         This Court’s standard of review of a trial court’s order granting summary judgment is de
novo and our scope of review is plenary. Pentlong Corp. v. GLS Capital, Inc., 72 A.3d 818, 823 n.6
(Pa. Cmwlth. 2013). The trial court’s order will be reversed only if it committed an error of law or
an abuse of discretion. Davis v. Brennan, 698 A.2d 1382, 1383 n.1 (Pa. Cmwlth. 1997).


                                                13
on alternative grounds because the testimony the trial court deemed not credible
contemplates only immaterial facts and is not sufficient to preclude entry of summary
judgment.
             Pursuant to the Pennsylvania Rules of Civil Procedure, summary
judgment is proper when there is no genuine issue of any material fact and the
moving party is entitled to judgment as a matter of law. Pa.R.C.P. No.1035.2(1). A
party is only entitled to judgment as a matter of law when the entire record
establishes that the moving party’s right to relief is clear and free from doubt.
Edinger v. Borough of Portland, 119 A.3d 1111, 1113 n.3 (Pa. Cmwlth. 2015). The
court must view the evidence in the light most favorable to the non-moving party and
resolve any doubt regarding the existence of a genuine issue of material fact against
the moving party. Royal v. Southeastern Pennsylvania Transportation Authority, 10
A.3d 927, 929 n.2 (Pa. Cmwlth. 2010). The moving party has the burden of proving
the non-existence of any genuine issue of material fact. O’Rourke v. Department of
Corrections, 730 A.2d 1039, 1041 (Pa. Cmwlth. 1999). For purposes of summary
judgment, “a factual issue is considered material if its resolution could affect the
outcome of the case under the governing law.” McCarthy v. City of Bethlehem, 962
A.2d 1276, 1278 (Pa. Cmwlth. 2008) (internal quotation omitted).             It is well
established that the credibility of testimony is a matter for the fact-finder and cannot
be resolved at the summary judgment stage. Department of Transportation v. UTP
Corp., 847 A.2d 801, 806 (Pa. Cmwlth. 2004); see also Nanty-Glo Borough v.
American Surety Co., 163 A. 523, 524 (Pa. 1932).
             Here, the record contains conflicting testimony regarding the Borough’s
motivation for furloughing the police department.        The trial court rejected the
testimony supporting Appellants’ position as not credible and concluded that “the
only logical conclusion based on the credible evidence is that the [Appellants] were


                                          14
laid off in good faith . . . .” (Trial court op. at 8) (emphasis added). As noted above,
it is well settled that the credibility of testimony is a matter for the fact-finder and
cannot be resolved at the summary judgment stage. UTP Corp, 847 A.2d at 806.
Accordingly, the trial court committed an error of law when it made credibility
determinations at the summary judgment stage.
             Notwithstanding the trial court’s improper credibility determinations, the
Borough argues that the trial court’s order should be affirmed on alternative grounds
because the testimony the trial court deemed not credible was not related to a material
fact and the undisputed record evidence indicates that the furlough was due to
economic reasons because it realized economic savings and its police department
worked less hours after the furlough than before.
             Section 1190(d) of the Code states that:

             If, for reasons of economy or other reasons, it shall be
             deemed necessary by any borough to reduce the number of
             paid employees of the police or fire force, the borough shall
             furlough the person, including a probationer, last appointed
             to the respective force. The removal shall be accomplished
             by furloughing in numerical order commencing with the
             person last appointed until the reduction shall have been
             accomplished. In the event the police or fire force shall
             again be increased, the employees furloughed shall be
             reinstated in the order of their seniority in the service. This
             subsection as to reductions in force is not applicable to a
             chief of police.
8 Pa.C.S. §1190(d) (emphasis added).
             This Court has stated that:

             The only limitation imposed on the power of a municipality
             to act in the reduction of its police civil service work force
             for economy or other reasons is that it must act in good
             faith. Thus, where there is affirmative evidence of bad faith
             on the part of municipal officials or where the facts show a
             patent attempt to avoid or circumvent civil service

                                           15
            positions, our Courts have held a municipality’s exercise of
            this power may be illegal.
Kraftician v. Borough of Carnegie, 386 A.2d 1064, 1066 (Pa. Cmwlth. 1978)
(emphasis added). To prevail in a challenge to a municipality’s reduction of its
police force, the challenger must show sufficient evidence of bad faith to rebut the
presumption that public officials acted with regularity. Id. Absent evidence to the
contrary, we must presume that public officials have acted with regularity. Gabriel v.
Trinity Area School District, 350 A.2d 203, 205 (Pa. Cmwlth. 1976). Cf. Schauer v.
Borough of Whitehall, 194 A.2d 318, 318 (Pa. 1963) (concluding that evidence
supported finding that borough’s adoption of ordinance abolishing the chief of police
position was not performed in good faith); Mack v. Hoover, 20 A.2d 757, 759 (Pa.
1941) (holding that transfer of sanitary inspector to police sergeant for purported
economic reasons was an attempt to circumvent civil service laws). Accordingly,
whether the Borough acted in good faith when it furloughed Appellants is a material
fact because it relates to whether the Borough’s exercise of power was lawful.
            Here, the record contains testimony challenging whether the Borough
acted in good faith when it implemented the furlough. Delaney testified that Krapf
had arrested the Mayor prior to his election and had reported Councilman Yelito to
the Attorney General’s Office for a prior felony conviction. (R.R. at 225a-26a.)
Delaney further testified that the Borough’s justification that the furlough was due to
economic reasons was a façade to terminate Krapf because Delaney had inquired
about the budget deficit numerous times but was provided no specific information
regarding the Borough’s financial status.      (R.R. at 219a, 225a-26a.)     After the
furlough, Delaney was advised to schedule Appellants for a maximum of sixteen
hours per week. (R.R. at 215a.) When Delaney failed to comply with the scheduling
order, the Mayor and members of the Borough Council advised him that he would be
laid off if he did not comply. (R.R. at 212a-17a.) Additionally, after the furlough,

                                          16
the preexisting part-time officers received an increase in wages and worked more
hours than before the furlough. (R.R. at 286a, 314a-15a.) Similarly, the record
evidence indicates that a tax anticipation loan and line of credit were the bases for the
Borough’s financial concerns and motivated the furlough; however, the same tax
anticipation loan and line of credit were used in the Borough’s subsequent budgets.
(R.R. at 369a-71a.)
             Because the relevant testimony raises a genuine issue of material fact,
which cannot be resolved by credibility determinations at the summary judgment
stage, the trial court’s order is vacated and the matter is remanded for further
proceedings consistent with the foregoing opinion.




                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge


Judge Wojcik did not participate in this case.
Senior Judge Pellegrini concurs in result only.




                                           17
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Charles A. Blesse, Keith A. Krapf,       :
and Todd Weiss,                          :
                   Appellants            :
                                         :    No. 1448 C.D. 2015
            v.                           :
                                         :
Borough of Coaldale                      :


                                     ORDER


            AND NOW, this 2nd day of May, 2016, the July 13, 2015 order of the
Court of Common Pleas of Schuylkill County is vacated and this matter is
remanded for further proceedings consistent with the foregoing opinion.
            Jurisdiction relinquished.



                                             ________________________________
                                             PATRICIA A. McCULLOUGH, Judge
