Gannon v. Perk, Nos. 75-247

CourtUnited States State Supreme Court of Ohio
Writing for the CourtPER CURIAM; C. WILLIAM O'NEILL; COLE, J., of the Third Appellate District, sitting for J. J. P. CORRIGAN
Citation75 O.O.2d 358,46 Ohio St.2d 301,348 N.E.2d 342
Docket NumberNos. 75-247,75-248
Decision Date02 June 1976
Parties, 75 O.O.2d 358 GANNON et al., Appellees and Cross-Appellants, v. PERK et al., Appellants and Cross-Appellees. CLEVELAND POLICE PATROLMEN'S ASSOCIATION et al., Appellees, v. CITY OF CLEVELAND et al., Appellants.

Page 301

46 Ohio St.2d 301
348 N.E.2d 342, 75 O.O.2d 358
GANNON et al., Appellees and Cross-Appellants,
v.
PERK et al., Appellants and Cross-Appellees.
CLEVELAND POLICE PATROLMEN'S ASSOCIATION et al., Appellees,
v.
CITY OF CLEVELAND et al., Appellants.
Nos. 75-247, 75-248.
Supreme Court of Ohio.
June 2, 1976.

Upon consideration of separate studies prepared by Cleveland's fiscal officers and by a firm of independent certified public accountants which concluded that if

Page 301

Cleveland's 1975 expenditures were maintained at 1974 levels a deficit of at least $16,000,000 would ensue, the city of Cleveland, on November 21, 1974, anounced that 1,118 city employees, supported by general fund income, would be laid off effective January 1, 1975, in order to avoid the impending deficit. Approximately 119 firemen and 169 policemen were among the employees scheduled for layoff.

In November 1974, and at all pertinent times thereafter, there were approximately 1,000 'temporary employees' on the payroll of the city of Cleveland. These

Page 302

temporary employees were appointed by various city officials to serve in diverse capacities within the structure of the city government. All such temporary employees had one characteristic in common: none of these persons had been tested by the city of Cleveland's civil service commission. Prior to the January 1, 1975, layoff, there were 440 temporary employees compensated through the city of Cleveland's general fund. After the layoff, 304 such temporary employees remained on the general fund payroll. The remainder of the temporary employees were employed and compensated through self-supporting and special funds created for a specific purpose.

[348 N.E.2d 344] On November 21, 1974, the date the impending layoffs were announced, the International Association of Firefighters, Local 93, and its President, Jack Gannon, filed a 'Complaint for Declaratory Judgment, Preliminary and Permanent Injunctions and Temporary Restraining Order' in the Court of Common Pleas of Cuyahoga County. The complaint prayed for a judgment declaring:

'1. That no firefighter can be laid-off by the defendant, Ralph J. Perk, Mayor of the city of Cleveland; and

'2. That no firefighter can be laid-off until the temporarily employed workers, illegally on the payroll, are removed from the city payroll; and

'3. The defendants be enjoined temporarily and permanently from paying or issuing vouchers for the payment of any salary or compensation or emolient (sic) of any kind to any person holding a position in the classified service contrary to law and court order; and

'4. That the defendants be enjoined from laying-off any firefighter of the Department of Safety, Division of Fire; and

'5. In the alternative, that defendants be enjoined from laying-off any firefighter of the Department of Public Safety, Division of Fire, until all persons holding a position in the classified service contrary to law and court order are laid-off * * *.'

On November 26, 1974, defendants Ralph J. Perk,

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Mayor of the city of Cleveland, and the city of Cleveland, filed a motion to dismiss the complaint pursuant to Civ. R. 12(B).

The Cleveland Fraternal Order of Police, Lodge No. 8, on November 27, 1974, and the Cleveland Police Patrolmen's Association, on December 17, 1974, moved to intervene in the action on behalf of the policemen involved. Both motions were granted by the court.

On December 17, 1974, the Cleveland Police Patrolmen's Association moved the court to consolidate the action with a dormant case entitled Cleveland Police Patrolmen's Association v. City of Cleveland et al. (Common Pleas Case No. 895,536). The dormant case, commenced, determined, and neglected in 1971, involved substantially identical issues and parties as the 1974 cause of action. In the 1971 case, the Court of Common Pleas refused to enjoin the layoff of policemen, and additionally ordered the Cleveland Civil Service Commission to administer tests, pursuant to a schedule set by the court, to 2,252 temporary employees then on the payroll of the city of Cleveland. The Court of Common Pleas retained jurisdiction over the action, but no further proceedings of significance occurred until the court ordered the case consolidated with the instant cause.

Although in both the 1971 and 1974 actions the plaintiffs sought to enjoin the payment and continued employment of Cleveland's temporary employees, in neither case were any of such temporary employees joined as parties, either individually or as a class, to the actions.

The aforementioned consolidated actions proceeded to trial before the Court of Common Pleas on December 19, 1974, together with a separate and independent action brought by the waste collection drivers of the city of Cleveland in an attempt to enjoin the impending layoff of personnel in the city of Cleveland's Division of Waste Collection, which was also consolidated for trial.

At the conclusion of the trial, the Court of Common Pleas, on December 31, 1974, in three separate orders, held:

Page 304

(1) that the layoffs by the executive branch of the government of the city of Cleveland, being in violation of the provisions of the Charter of the city of Cleveland which requires action by city council in order to effectuate a layoff of safety personnel, are contrary to law;

[348 N.E.2d 345] (2) that the temporary employees on the payroll of the city of Cleveland for any period exceeding 90 days but less than two years who have not qualified for civil service classification through examination are being paid in direct contravention of the Charter of the city of Cleveland; and

(3) that the injunction sought by the waste collection drivers must be denied.

Pursuant to the above rulings, the Court of Common Pleas enjoined the layoff of policemen and firemen, and further enjoined the continued payment of Cleveland's temporary employees.

On January 6, 1975, appellants filed notices of appeal to the Court of Appeals for Cuyahoga County with respect to rulings (1) and (2) above. Thereafter, the International Association of Firefighters and the Fraternal Order of Police filed cross-appeals. No appeal was filed by either the city of Cleveland or the waste collection drivers with respect to ruling (3) above.

On January 9, 1975, the Court of Appeals stayed the order of the Court of Common Pleas enjoining the payment of Cleveland's temporary employees, but refused to stay the order of the Court of Common Pleas enjoining the layoff of police and fire personnel. On January 20 and 27, 1975, the City Council of Cleveland enacted ordinances authorizing the layoff of Cleveland policemen and firemen, respectively. On January 24, 1975, the Court of Common Pleas issued a new order enjoining the layoff of policemen and firemen, and, later that same day, the Court of Appeals reversed the order upon the basis that the lodging of appeals from the December 31, 1974, orders of the Court of Common Pleas divested that court of all jurisdiction in the matter. On January 30, 1975, the Court of Appeals issued an order superseding its January 9, 1975 order staying in

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part the December 31, 1974, judgment of the Court of Common Pleas, the effect of which was to stay that judgment in its entirety.

On February 20, 1975, the Court of Appeals rendered its decision affirming in part and reversing in part the judgment of the Court of Common Pleas, and remanded the cause to the trial court for further proceedings. The Court of Appeals held:

(1) that an action in declaratory judgment seeking a declaration regarding the legality of layoffs by the city of Cleveland of policemen and firemen may be maintained notwithstanding the existence of an alternative remedy by way of appeal to the civil service commission and to the courts pursuant to R.C. Chapter 2506;

(2) that the mayor of the city of Cleveland has the discretion to temporarily lay off civil service employees, including policemen and firemen, in times of financial crisis, so long as such layoffs are made in conformity with the charter and ordinances of the city of Cleveland, and with the rules of the civil service commission;

(3) that pursuant to Sections 130 and 135 of the Charter of the city of Cleveland, all temporary employees on the payroll of the city for more than 90 days without being tested and certified by the civil service commission are illegally on such payroll, and are being paid contrary to law; and

(4) that R.C. 124.271 is not applicable to a charter city such as the city of Cleveland; therefore, any temporary employee on the payroll of the city of Cleveland for more than two years without being tested and certified does not attain permanent civil service status.

On March 19, 1975, the Court of Common Pleas, acting pursuant to the mandate of the Court of Appeals upon remand, ordered the immediate removal from the payroll of the city of Cleveland of all untested temporary employees, and further ordered that 75 percent of the persons so removed be rehired pending further litigation.

Appellants applied for a stay of execution of

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the mandate of the Court of Appeals,[348 N.E.2d 346] and of all proceedings in the Court of Common Pleas pursuant to that mandate. On March 24, 1975, all proceedings below were stayed by order of this court, which stay remains in effect at this time.

The cause is now before the court upon the allowance of both appellants' motion and appellees' cross-motion to certify the record.

Thomas J. Friel, Cleveland, for appellees and cross-appellants Gannon and the International Association of Firefighters, Local 93.

James B. Davis, director of law, and Malcolm C. Douglas, Cleveland, for appellants (case No. 75-248) and cross-appellees (case No. 75-247).

Climaco, Goldberg & Boukalik, John R. Climaco and Paul S. Lefkowitz, Cleveland, for appellee Fraternal Order of Police, Lodge No. 8.

James L. Oakar, Cleveland, for appellee Cleveland Police...

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  • Buckeye Com. Hope Found. v. City of Cuyahoga Falls, No. 5:96 CV 1458.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • June 20, 1997
    ...relief the nature of the action has not been changed from one at law to one at equity), aff'd in part, rev'd in part on other grounds, 46 Ohio St.2d 301, 348 N.E.2d 342 (1976). 18. Defendants urge the Court to view Ketchel and consequently Union Oil narrowly so as to limit the availability ......
  • Castelli v. Carcieri, No. PC 07-6322 (R.I. Super 7/31/2008), No. PC 07-6322.
    • United States
    • Superior Court of Rhode Island
    • July 31, 2008
    ...440 A.2d 823, 829 (Conn. 1981)); McNea v. Voinovich, 70 Ohio St. 2d 117, 118, 435 N.E.2d 420, 422 (Ohio 1982) (citing Gannon v. Perk, 46 Ohio St. 2d 301, 313, 348 N.E.2d 342, 350 (Ohio 1976); State, ex rel. Buckman, v. Munson, 141 Ohio St. 319, 326, 48 N.E.2d 109, 113 (Ohio 1943)); Indianap......
  • Potts v. Unglaciated Indus., Inc., No. 15 MO 0003.
    • United States
    • United States Court of Appeals (Ohio)
    • December 30, 2016
    ...jurisdictional defect, which precludes a trial court from rendering a proper declaratory judgment and cannot be waived. Gannon v. Perk, 46 Ohio St.2d 301, 310–311, 348 N.E.2d 342 (1976). See also Portage Cty. Bd. of Commrs. v. Akron, 109 Ohio St.3d 106, 2006-Ohio-954, 846 N.E.2d 478, ¶ 99–1......
  • Maryland-National Capital Park and Planning Commission v. Washington Nat. Arena, MARYLAND-NATIONAL
    • United States
    • Court of Appeals of Maryland
    • May 23, 1978
    ...to construe the disputed noncontestability provision and awaited the outcome of the administrative appeal. See Gannon v. Perk, 46 Ohio St.2d 301, 348 N.E.2d 342, 348 Page 595 Notwithstanding the strong legislative policy favoring the liberal use and interpretation of the Declaratory Judgmen......
  • Request a trial to view additional results
103 cases
  • Buckeye Com. Hope Found. v. City of Cuyahoga Falls, No. 5:96 CV 1458.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • June 20, 1997
    ...relief the nature of the action has not been changed from one at law to one at equity), aff'd in part, rev'd in part on other grounds, 46 Ohio St.2d 301, 348 N.E.2d 342 (1976). 18. Defendants urge the Court to view Ketchel and consequently Union Oil narrowly so as to limit the availability ......
  • Castelli v. Carcieri, No. PC 07-6322 (R.I. Super 7/31/2008), No. PC 07-6322.
    • United States
    • Superior Court of Rhode Island
    • July 31, 2008
    ...440 A.2d 823, 829 (Conn. 1981)); McNea v. Voinovich, 70 Ohio St. 2d 117, 118, 435 N.E.2d 420, 422 (Ohio 1982) (citing Gannon v. Perk, 46 Ohio St. 2d 301, 313, 348 N.E.2d 342, 350 (Ohio 1976); State, ex rel. Buckman, v. Munson, 141 Ohio St. 319, 326, 48 N.E.2d 109, 113 (Ohio 1943)); Indianap......
  • Potts v. Unglaciated Indus., Inc., No. 15 MO 0003.
    • United States
    • United States Court of Appeals (Ohio)
    • December 30, 2016
    ...jurisdictional defect, which precludes a trial court from rendering a proper declaratory judgment and cannot be waived. Gannon v. Perk, 46 Ohio St.2d 301, 310–311, 348 N.E.2d 342 (1976). See also Portage Cty. Bd. of Commrs. v. Akron, 109 Ohio St.3d 106, 2006-Ohio-954, 846 N.E.2d 478, ¶ 99–1......
  • Maryland-National Capital Park and Planning Commission v. Washington Nat. Arena, MARYLAND-NATIONAL
    • United States
    • Court of Appeals of Maryland
    • May 23, 1978
    ...to construe the disputed noncontestability provision and awaited the outcome of the administrative appeal. See Gannon v. Perk, 46 Ohio St.2d 301, 348 N.E.2d 342, 348 Page 595 Notwithstanding the strong legislative policy favoring the liberal use and interpretation of the Declaratory Judgmen......
  • Request a trial to view additional results

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