Commonwealth ex rel. Siani v. City of Wilkes-Barre
| Decision Date | 15 July 1949 |
| Citation | 67 A.2d 776,164 Pa.Super. 529 |
| Parties | Commonwealth ex rel. Siani et al., Appellants, v. City of Wilkes-Barre et al |
| Court | Pennsylvania Superior Court |
Argued March 8, 1949.
Appeal, No. 33, Feb. T., 1949, from order of Court of Common Pleas of Luzerne County, Oct. T., 1948, No. 1809, in case of Commonwealth ex rel. John Siani et al. v. City of Wilkes-Barre et al.
Mandamus.
Judgment entered for defendants, before Flannery, Lewis and Pinola JJ., opinion by Lewis, J. Plaintiffs appealed.
George I. Puhak, for appellants.
Howard E. Kennedy, City Solicitor, for appellees.
OPINION
Appellants instituted mandamus to compel the City of Wilkes-Barre and the members of its council to reinstate them as active members of the paid fire department, and for the payment of their bi-weekly salaries of $ 109.58. The defendants filed an unverified pleading captioned "Preliminary Objection to Complaint" which in its text is actually a motion for a "Rule on the plaintiffs above-named to show cause why judgment should not be entered for the defendants because the Complaint filed by the above-named plaintiffs did not state a cause of action." This seems to have been an effort to combine the preliminary objection provided by Pa. R. C. P. No. 1028 with the motion for judgment on the pleadings under Pa. R. C. P. No. 1034. The court granted the rule; appellants answered; and, after argument, the court en banc entered judgment for defendants. No objection to the regularity of the proceedings or to the propriety of a joint action or appeal has been raised. See Pa. R. C. P. No. 2229(a), 12 PS Appendix, p. 308. The question of the jurisdiction of this Court was waived at the argument. Act of May 5, 1899, P. L. 248, § 11, 17 PS § 203.
Appellees' anomalous pleading has been treated here in the same way as the parties and the court below dealt with it. All regarded it as a motion for final judgment; none sought an interlocutory order. Appellants did not seek an opportunity to amend their complaint after the decision against them. In this Court appellees did not so much as intimate that they be allowed to answer in the event that their legal position was not sustained. The facts are admitted, and both parties submitted a bare question of law to the court below and this Court. Following the course which the proceedings have consistently followed, we shall enter a final judgment.
In 1948 Siani was 46 years old, Herman 59 years old; Siani had been a fireman for 22 years, Herman for 30 years. They were firemen when the Act of June 23, 1931, P. L. 932, § 4401, 53 PS § 12198-4401 et seq., was enacted, and thereby (§ 4407, 53 PS § 12198-4407) acquired civil service status. They may be discharged only "for misconduct, or violation of any law of this Commonwealth, any ordinance of the city, or regulation of the department," and then only after a hearing by council. When the number of employes in any department is reduced "for purposes of economy, seniority rights shall prevail" and "the member or members serving the shortest time shall be removed first." Id. § 4408, 53 PS § 12198-4408. The force was not reduced for purposes of economy or for any other reason.
On December 3, 1946, the city ordained On August 3, 1948, the city council resolved "that the following named men be and they are hereby retired from active duty in the Bureau of Fire, effective August 16, 1948, and be it further resolved that the said men shall be subject to service from time to time as a Firemen's Reserve until unfitted for such service when they may be finally discharged by reason of age or disability: Joseph Herman, John Siani".
The controversy revolves around the ordinance and resolution appellants contending that they violate their rights as civil service employes. It is conceded that no charges were preferred against them, no hearing afforded to them, and that they have not applied for retirement or pension. It must be observed too that there is no finding that they are disabled or unfit for service. On the contrary, they are still subject to service in the reserve force, presumably without pay, until they do become "unfitted for such service when they may be finally discharged by reason of age or disability". It is also clear that no fixed rule was followed in designating appellants for retirement. Siani is only 46 years old, Herman almost sixty; so age was not a factor. Siani served 22 years, Herman 30 years; so comparative length of service was not the determining standard. On its face the resolution bears the earmarks of arbitrary selection and action....
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