Kelly v. Jones

• Decision Date: 09 November 1965
• Citation: 419 Pa. 305,214 A.2d 345
• Parties: Ambrose J. KELLY v. C. Herschel JONES, Chairman, Mary Dilworth Barnes and John A. M. McCarthy, Members of the State Civil Service Commission, Commonwealth of Pennsylvania.
• Court: Pennsylvania Supreme Court

214 A.2d 345

419 Pa. 305

Ambrose J. KELLY v. C. Herschel JONES, Chairman, Mary Dilworth Barnes and John

A. M. McCarthy, Members of the State Civil Service Commission, Commonwealth of Pennsylvania.

Supreme Court of Pennsylvania.

November 9, 1965.

Ralph D. Tive, Pittsburgh, for appellant.

Walter E. Alessandroni, Atty. Gen., and Edgar R Casper, Deputy Atty. Gen., Dept. of Justice, Harrisburg, for appellees.

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

MUSMANNO, Justice.

Ambrose J Kelly was appointed Field Auditor in the Pennsylvania Department of Revenue when that position was neither under executive nor legislative civil service. Some time after his employment, the Executive Board of the Commonwealth brought his position within the ambit of executive civil service, and directed that as a condition for continued employment he, with other incumbents, had to pass a qualifying examination. He passed the test and in September, 1957, was notified that he now held regular or permanent status as a Field Auditor I in the Department of Revenue. In April, 1960, he was promoted to Field Auditor II with probationary status; and then in October, 1960 he was promoted to regular permanent status as Field Auditor II.

The Executive Board of the Commonwealth, in placing the plaintiff's position within the coverage of civil service, acted pursuant to the authority of the Civil Service Act of 1941 (Act of August 5, 1941, P.L. 752, 71 P.S. § 741.1 et seq.) section 212 of which provided that the service and facilities of the Civil Service Commission were to be made available to state government departments, boards and commissions not otherwise subject to the act, upon such terms and conditions prescribed by commission rules and regulations. In accordance with that section, the Executive Board of the Commonwealth directed various departments, boards and commissions of the Commonwealth to enter into agreements with the Civil Service Commission to administer the provisions of the Civil Service Act with respect to employees (such as Mr. Kelly) of government agencies not otherwise subject to the Act.

Thus Ambrose J. Kelly was enjoying the status of a permanent Field Auditor under this executive civil service when, in 1963 the legislature placed on the statute books the Act of August 27, P.L. 1257, 71 P.S. § 741.1005, which brought within the coverage of legislative civil service thousands of state employees who theretofore had enjoyed either no civil service protection at all or only executive civil service protection. Under this amendatory Act of 1963, Kelly's status was changed from that of a regular or permanent employee, which he had enjoyed under executive civil service, to a probationary one. The 1963 Act further provided that any person serving such probationary period was, upon written notification of unsatisfactory work being submitted to the director by the appointing authority and countersigned by the Budget Secretary, subject to separation from the classified service without right of appeal.

On December 3, 1963, Kelly was notified by written notice of his dismissal from state employment effective December 19, 1963 for the assigned reason that his work performance had been found unsatisfactory. He promptly filed an appeal with the Civil Service Commission contending (1) that, having attained permanent status under executive civil service he enjoyed 'full Civil Service prerogatives and protection and is entitled to a hearing on dismissal'; and (2) that his constitutional rights were violated by the Commission's denial of his right to a hearing. The Civil Service Commission refused to entertain his appeal, relying on the 1963 Amendatory Act which forbids such appeal, as above stated. Mr. Kelly then filed a complaint in mandamus against the members of the Civil Service Commission asking that the Court order the commission to hold a hearing upon his appeal from his dismissal from service. The Commission filed preliminary objections in the nature of a demurrer which the Court below sustained. An appeal to this Court followed.

The first question with which we are confronted is: Did the plaintiff, by virtue of his having attained permanent status under executive civil service, which entitled him to Civil Service protection and right of appeal upon discharge, acquire such a vested right that his status could not be later changed by the legislature? Put in another way, did the Amendatory Act of 1963 violate Mr. Kelly's constitutional rights in that it reclassified him from a permanent to a probationary employee who upon discharge had no right of appeal?

It must be stated at the outset that whatever authority the Executive Board of the Commonwealth possessed to bestow civil service protection upon Kelly was derived from an Act of the legislature, which Act permitted the Board to exercise the indicated authority only with respect to those employees 'not otherwise subject to the Act.' Since all statutory law must be given a reasonable construction, we cannot hold that, by so providing, the legislature intended to thereafter forever bar itself from ever legislating regarding such employees. The legislature necessarily retained the power to withdraw the authority given the Board and to legislate with respect to employees in Kelly's status.

The reasoning which this Court applied in the Teachers' Tenure Act Cases, 329 Pa. 213, 197 A. 344, applies equally well here:

'In Home Building & Loan Ass'n. v. Blaisdell et al. 290 U.S. 398, at page 435, 54 S.Ct. 231, 239, 78 L.Ed. 413, 88 A.L.R. 1481, it was said: 'Not only are existing laws read into contracts in order to fix obligations as between the parties, but the reservation of essential attributes of sovereign power is also read into contracts as a postulate of the legal order.' Even if no mention were made in these contracts of the reserved power in the Legislature to alter the school laws, it would be deemed to exist by essential implication.

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'But the contract which the school teachers have with the state is a qualified contract. It is subject to delimitation of its operation by subsequent statutory changes. When a state enters into contracts with private individuals for the performance of services as independent contractors, or for the loan of funds incidental to the carrying out of a governmental function, these contracts are protected against impairment by subsequent legislation. Thus city bondholders can object to the impairment of their contracts by the municipality or the Legislature. (citing cases.) These, to a degree, partake of the nature of business or proprietary contracts. For example, municipal governments acting in their governmental capacity, provide police and firemen to protect the safety and property of their citizens. The employment of these men is in the direct exercise of the governmental function and the employees are within the immediate path of its operation. In performing their services they represent the government and exercise a portion of its powers. But when a municipality contracts for the erection of a fire house or police station, the contractor is doing something which is merely auxiliary to the exercise of a governmental function. He neither represents the municipality, nor exercises municipal power. The contract which the municipality makes with the building contractor cannot be abrogated either by the...