Allen v. Borough of West Mifflin

• Decision Date: 23 November 1965
• Citation: 214 A.2d 502,419 Pa. 394
• Parties: John E. ALLEN v. BOROUGH OF WEST MIFFLIN and the Council of West Mifflin, comprised of John A. Benyak, R. W. Ditmore, Leonard L. Phillips, L. J. Richards, Charles E. Wehrer. Stephen Horvath, Raymond Vorek and Martin Bayuk, Appellants.
• Court: Pennsylvania Supreme Court

214 A.2d 502

419 Pa. 394

John E. ALLEN v. BOROUGH OF WEST MIFFLIN and the Council of West Mifflin, comprised of John A. Benyak, R. W. Ditmore, Leonard L. Phillips, L. J. Richards, Charles E. Wehrer. Stephen Horvath, Raymond Vorek and Martin Bayuk, Appellants.

Supreme Court of Pennsylvania.

November 23, 1965.

R. R. McWhinney, Pittsburgh, for appellants.

T Robert Brennan, Brennan & Brennan, Pittsburgh, for appellee.

Before BELL C. J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

COHEN Justice.

Appellee John G. Allen, was a policeman for the Borough of West Mifflin when he was 'retired' pursuant to Borough Ordinance No. 507 which provides as follows:

'(a) Police Officers of the Borough of West Mifflin having a minimum period of total service not less than an aggregate of 20 years in the Borough of West Mifflin, may be retired from active duty with the Borough of West Mifflin, at the age of 61 years, upon appropriate action being taken by the Council of the Borough of West Mifflin.'

This Ordinance requires that the policeman to be retired have both an aggregate of 20 years service and be 61 years old. Thus age is not the criterion. Presumably, an officer with less than 20 years aggregate total service cannot be retired at age 61 under this Ordinance. In Soltis Appeal, 390 Pa. 416, 135 A.2d 744 (1957), we reaffirmed the position this Court took in Boyle v. City of Philadelphia, 338 Pa. 129, 12 A.2d 43 (1940), wherein we said: 'Where a bona fide attempt is made by a municipality to improve its police and fire service, and all employees of the same class are treated alike, it would seem that there can be no doubt that the municipality has the right to adopt a plan of demotion and retirement based upon age limitations.' (Emphasis supplied). This Ordinance, since it is not based upon age limitations or any other uniform criterion does not treat all members of the class alike. Further, its invocation of dependent upon 'appropriate action' being taken by the Borough Council. Such an ordinance permits arbitrary action. In Commonwealth ex rel. Siani v. City of Wilkes-Barre, 164 Pa.Super. 529, 67 A.2d 776 (1949), the Superior Court held an ordinance giving discretion similar to that involved herein to be invalid as violative of civil service status. We find that the present Ordinance by permitting termination of employment as a policeman on grounds not specified within the civil service statutes, and which are not uniform, is violative of such statutes, and thus invalid. It is therefore unnecessary to decide whether the Ordinance is also unconstitutional.

A further question is raised by the delay involved in filing the complaint and adjudicating the present case. Appellee received notice of his October 1, 1963 'retirement' on September 18, 1963. His counsel contacted the Borough Council on September 26, 1963. Yet no...