Hexter v. Haverford Tp.

• Decision Date: 19 July 1951
• Citation: 169 Pa.Super. 168,82 A.2d 668
• Parties: HEXTER v. HAVERFORD TP.
• Court: Pennsylvania Superior Court

82 A.2d 668

169 Pa.Super. 168

HEXTER v. HAVERFORD TP.

Superior Court of Pennsylvania.

July 19, 1951

Action by John A. Hexter against Haverford Township to recover amount of salary withheld from him as the result of an alleged unlawful suspension. The Court of Common Pleas of Delaware County, as of March term, 1949, No. 1299 Bretherick, J., gave judgment for the defendant and the plaintiff appealed. The Superior Court, No. 234, October term, 1950, Dithrich, J., held that where the statute provides for appeal from decision of commission which was authorized to hear the charges against plaintiff, the fact that one of the members of the commission instigated the charges, did not deny plaintiff due process of law.

Judgment affirmed.

Stephen J. McEwen, Upper Darby, Louis Wagner Philadelphia, for appellant.

Raymond E. Larson, Media, Township Sol., for appellee.

Before RHODES, P. J., and HIRT, RENO, DITHRICH, ROSS, ARNOLD and GUNTHER, JJ.

DITHRICH Judge.

John A Hexter, appellant, a member of the police force of Haverford Township, brought this action in assumpsit in the Court of Common Pleas of Delaware County to recover the amount of salary withheld from him as the result of an alleged unlawful thirty-day suspension.

Defendant filed preliminary objections which consisted of a motion to strike off the complaint and a demurrer. The demurrer was sustained by the court below in an opinion by Bretherick, J., wherein he stated: ‘ We concur in the statement contained in defendant's demurrer that ‘ the facts set forth in the complaint, when considered separately from the conclusions of law which are recited therein, do not constitute a cause of action on which the plaintiff is entitled to recover.’ '

With respect to the procedural effect of the demurrer the court properly said: ‘ Defendant, by demurring to the complaint, admits for present purposes the truth of all matters well pleaded therein. Wildee v. McKee, 111 Pa. 335, 337, ; Price v. Conway, 134 Pa. 340, 341, [19 A. 687,8 L.R.A. 193]; * * *Troop v. Franklin Savings & Trust Co., 291 Pa. 18 . But, it is important to remember, a demurrer admits only material allegations of fact well pleaded, and not statements of legal conclusions or inferences from facts. Commonwealth ex rel. Davis v. Blume, 307 Pa. 406 .’

The averment in the complaint that ‘ the Superintendent of Police has no power or authority to suspend the plaintiff as a member of the said police force’ is not a material allegation of fact admitted by the demurrer but a conclusion of law.

The material facts alleged in the complaint and admitted by the demurrer are as follows: The defendant is a township of the first class, it corporate powers being vested in a Board of Township Commissioners. On April 1, 1941, plaintiff was appointed by the Township Commissioners to membership in defendant's police force and served as a policeman until March 21, 1949, at a monthly salary of $255.20. On or about that date he was notified by the Superintendent of Police, James F. Hartness, that he was suspended. This notice was followed by a written notice of suspension from the Superintendent, signed by him, dated March 24, 1949. The notice recited that the following written charges had been made against plaintiff: ‘ On March 20, 1949, about 4:00 p. m. you did disobey the Rules and Regulations of the Haverford Township Police Department and the orders of the Superintendent of Police in that you did contact * * * [the] Secretary of the Civil Service Commission without first obtaining permission from Superintendent of Police, and further, at the aforesaid time and place you did make certain accusations that the examination conducted by the Township of Haverford through its Civil Service Commission was not properly conducted and in accordance with the law, and thereby you violated the terms of the Civil Service Act of 1941 P.L. No. 84, in that you conducted yourself in a manner unbecoming an officer, and contrary to the orders of the Superintendent of Police and the Code of Discipline of the Haverford Township Police Department.’

Section 13 of the Act, 53 P.S. § 351.13, provides in part: ‘ If any applicant or person feels himself aggrieved by the action of the commission in refusing to examine him or to certify him as eligible after examination the commission shall at the request of such person, within ten (10) days, appoint a time and place where he may appear personally and by counsel, whereupon the commission shall then review its refusal to make such examination or certification and take such testimony as may be offered. The decision of the commission shall be final.’

In our opinion this case is ruled by Cain v. Stucker, 159 Pa.Super. 466, 48 A.2d 162, 164. In that case plaintiff had been appointed to the police force of Upper Darby Township Delaware County. Sometime prior to June 27, 1944, the Superintendent of Police of the Township served Cain with a copy of a notice in writing, signed by him, charging Cain with ‘ neglect of duty and inability to perform his duties as a * * * patrolman and that a hearing thereon would be held on June 27, 1944,’ by the Civil Service Commission. A hearing was held by the Commission on the date set forth in...