ATTORNEY FOR APPELLANTS: ATTORNEY FOR APPELLEES:
LARRY D. STASSIN MICHAEL W. BOSCH
Hammond, Indiana Hammond, Indiana
IN THE COURT OF APPEALS OF INDIANA
JOSEPH PEDRAZA; ) HOWARD VANSELOW; and ) NICK DVORSCAK, ) ) Appellants-Defendants, ) ) vs. ) No. 45A03-0005-CV-188 ) CITY OF EAST CHICAGO; ) ROBERT A. PATRICK, Mayor; ) CITY OF EAST CHICAGO ) FIRE DEPARTMENT; and ) JAMES DAWSON, Fire Chief, ) ) Appellees-Plaintiffs. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable James J. Richards, Judge
Cause No. 45D05-9902-CP-174
APRIL 9, 2001
OPINION - FOR PUBLICATION
RATLIFF, Senior Judge
II. Whether the trial court correctly found that there was no genuine
issue of material fact and appropriately issued an order granting summary judgment in
favor of Appellees regarding the appropriateness of the City of East Chicagos decision
to pay fire department employees who do different kinds of work at different
rates, to make overtime available to some employees and not others, and to
require some employees to be on call without providing extra compensation for that
Appellants argue that we should reverse the trial courts decision to grant Appellees motion for summary judgment because Appellees are not entitled to notice under the Indiana Tort Claims Act. Appellees had argued, in part, before the trial court in their motion that Appellants were required to comply with the Indiana Tort Claims Act because Appellants alleged that Appellees had acted in an arbitrary and discriminatory way.
We agree with Appellants that this case sounds in contract and not in tort. We previously have held that the immunity provision of the Indiana Tort Claims Act is limited to certain acts by governmental entities resulting in injury to or death of a person, or damage to property. See Underwood v. City of Jasper Mun. Util., 678 N.E.2d 1280, 1283 (Ind. Ct. App. 1997); Ind. Code §34-6-2-75(a). The complaint in the case at bar alleges none of those things.
Appellee has not responded to the argument contained in Appellants brief that the Indiana Tort Claims Act is inapplicable in this situation. Normally, when an appellee fails to file a brief, we will reverse if appellant demonstrates prima facie error occurred. See Johnson County Rural Electric v. Burnell, 484 N.E.2d 989, 991 (Ind. Ct. App. 1985). In Roth v. Vandalia Railroad Co., 187 Ind. 302, 119 N.E. 1 (1919), our supreme court held that this rule also applied where the appellees filed a brief which did not respond to all the issues raised by the appellant.
In the present case, the trial courts rationale for granting the motion for summary judgment is not apparent on the face of the order itself. However, we may sustain an order on a motion for summary judgment upon any theory supported by the designated materials. T.R. 56(C). Therefore, even though we are inclined to agree with Appellants that the Indiana Tort Claims Act is inapplicable in the case at bar, that theory is not the only theory presented in the materials designated by the parties.
In addition, while we agree with Appellants that the Mayor and the Fire Chief are not immune from suit under the Indiana Tort Claims Act, Appellees are correct in their argument that the Mayor and the Fire Chief should be dismissed from this lawsuit, and that the portion of the order granting summary judgment in their favor is correct. First, there is no allegation that Appellants had a contract with either the Fire Chief or Mayor. Furthermore, as this court previously has held with regard to judgments against public officials, no judgment shall be rendered against him in his individual capacity unless he is so named. See Mays v. Parker, 258 N.E.2d 666, 679 (Ind. Ct. App. 1970); Ind. Trial Rule 19(F)(3). Additionally, we have held that naming a defendant by his position or office raises a presumption he has been sued in his official capacity. Crawford v. City of Muncie, 655 N.E.2d 614, 620 (Ind. Ct. App. 1995). If a plaintiff wants to sue a public official in his or her personal capacity or in both personal and official capacities, the plaintiff should state so expressly in the complaint. See Lake Co. Juvenile Ct. v. Swanson, 671 N.E.2d 429, (Ind. Ct. App. 1996). The trial court did not err by granting the motion for summary judgment with respect to the Mayor and the Fire Chief.
Ind. Code §36-8-3-3(d).
The City of East Chicagos legislative body adopted a salary ordinance for police and fire personnel, No. 0-98-0006 §1, which is at the heart of this dispute. The ordinance provides in relevant part as follows:
The above is the maximum base pay for the different job classifications of the Fire Department and in addition the following compensation is adjusted and added to the base pay accordingly.
(R. 81). The adjustments to the base pay mentioned in the ordinance
pertain to vacation time and extra compensation due to rank and grade among
other things. (R. 81).
Blacks Law Dictionary includes several definitions of the word grade including the following:
Quality, value, relative position, rank, status, or standing. Mossman v. Chicago & Southern Air Lines, 236 Mo.App. 282, 153 S.W.2d 799, 801, 802.
BLACKS LAW DICTIONARY 628 (5th ed. 1979). Blacks Law Dictionary also contains
a definition of the word rank which is as follows:
Position in society. Grade of quality or value. Grade of official standing. The order or place in which certain officers are placed in the army and navy, in relation to others. Rank is often used to express something different from office. It then becomes a designation or title of honor, dignity, or distinction conferred upon an officer in order to fix his relative position in reference to other officers in matters of privilege, precedence, and sometimes of command, or by which to determine his pay and emoluments. This is the case with the staff officers of the army. Wood v. U.S., 15 Ct.Cl. 151, 159.
BLACKS LAW DICTIONARY 1133 (5th ed. 1979). The word classification is defined
as follows by Blacks Law Dictionary:
Arrangement into groups or categories on the basis of established criteria. The word may have two meanings, one primarily signifying a division required by statutes, fundamental and substantial, and the other secondary, signifying an arrangement or enumeration adopted for convenience only.
BLACKS LAW DICTIONARY 226 (5th ed. 1979).
In Commonwealth ex rel. Margiotti v. Sutton, 327 Pa. 337, 341, 193 A. 250, 252 (1937), the court held that under the state constitutional provision requiring that organization, jurisdiction, and powers of all courts of the same class or grade shall be uniform, the words class and grade are synonymous, and should be given their ordinary, not technical, meaning. P.S.Const. art. 5 §26; See also 18A W & P, Grade; Grading (1956). Furthermore, in Haynie v. City of Little Rock, 418 S.W.2d 633, 636 (1967), the court held that the words grade and rank are synonymous within a statute requiring each board of civil service commissioners to prescribe rules governing fire departments and requiring that rules provide for promotion based upon open and competitive examinations, that lists be created for each rank of service and promotion made therefrom and that advancement in rank or increase in salary beyond limits fixed for grade by rules of commission constitute a promotion. See also, 18A W & P, Grade (2000 Supp.).
Based upon our review of the authority mentioned above, we hold that the words grade, rank, and classification are synonymous for purposes of Ind. Code §36-8-3-3(d). That statute allows local governments to grade members of departments and regulate their pay by rank and length of service. The statute on its face contemplates that employees of the fire department are going to be compensated differently due to differing levels of experience and responsibilities attendant to their positions. The ordinance provides for base pay according to job classification and extra compensation relative to rank. The different treatment of staff and line firefighters seems to be reasonable in light of their relative responsibilities, and there is no apparent illegal basis for that treatment. Further, there is nothing in the statute or the ordinance that prohibits compensating the various grades, ranks or classes of firefighters differently where their responsibilities are different; in fact, it provides therefor.
Additionally, the ordinance itself speaks to the issue of the availability of overtime. Section 2 of the ordinance reads as follows:
SECTION 2. Salary and wage rates are herein established as maximum amounts of compensation to be paid for specific position or classification, based on an established work week. Overtime compensation will be compiled and allowed on this basis only. Implementation of this ordinance is based on available funds. (Emphasis supplied.).
(R. 82). It is logical that if the position requiring an employee
to work overtime is a line firefighter position, then only line firefighters would
be eligible to work that available overtime based upon their established work week.
It also is reasonable for that overtime work to be offered first
to those line firefighters with the most experience. Staff firefighters have a
different work schedule and responsibilities. It would be illogical to allow staff
firefighters to work overtime in a totally different position. Besides, it would
be contrary to the express language of the ordinance. That language is
permitted by statute.
Appellants also argue that they should receive additional compensation for being on call. In support of that argument they point to the staff firefighters who work for the Inspection Bureau. Those staff firefighters receive an additional $7,000.00 per year in compensation for being on call. Appellants receive overtime compensation any time they are called out, but not for being on call.
Staff firefighters in the Inspection Bureau have limitations placed on them when they are on call. Those on call shifts occur in two-week periods. Those staff firefighters are to refrain from using alcohol, they must not leave the general area of East Chicago, so that they can reach the scene of the fire quickly, and must remain accessible by the fire department phone center. None of those restrictions or requirements are placed upon Appellants. Appellees argue that the additional compensation is justified because the on-call shift is closer to an actual work shift. Again, the difference in compensation appears to be reasonable in light of the differences in responsibilities and restrictions. Furthermore, any time staff firefighters, such as Appellants, are called in to work, those firefighters are paid for the overtime worked. The trial court did not err.
Last, Appellants allege that they are treated differently regarding vacation time. They allege that staff firefighters receive approximately thirty-five vacation days per year, while line firefighters receive approximately forty-five vacation days per year.
The section of the ordinance that provides for vacation time reads as follows:
Vacation and Personal Leave: 15 workdays (24 hr. equals one workday) equals 39 See footnote vacation days per year. Up to 78 unused vacation days limit upon termination of employment.
While we understand how there could be confusion on the part of staff firefighters regarding how much vacation time they receive in comparison to how much vacation time line firefighters receive, we conclude that the two groups are treated equally according to the terms of the ordinance.
If twenty-four hours are the equivalent of one workday, and the firefighters are entitled to fifteen workdays in vacation time, then they are entitled to 360 hours of vacation time. Forty-five vacation days multiplied by eight-hour days equals 360 hours of vacation time. Put more simply, the first part of the ordinance speaks to vacation time for line firefighters, while the second part speaks to vacation time for staff firefighters. The line firefighters, who work twenty-four hour shifts, which by ordinance equals one workday, are entitled to 360 hours of vacation. The staff firefighters who work eight hour days, five days a week, are entitled to forty-five days or 360 hours of vacation. While the vacation time is expressed differently because there are two different types of shifts, each of the groups is treated equally under the express terms of the ordinance. The trial court did not err by issuing an order granting summary judgment in favor of Appellees.