Cornman v. Philadelphia

111 A.2d 121, 380 Pa. 312, 1955 Pa. LEXIS 569

• Court: Supreme Court of Pennsylvania
• Decided: January 12, 1955
• Docket: Appeals, 324 and 325
• Status: Published

Opinions

Opinion by

Mr. Justice Allen M. Stearns,

Two appeals have been taken from judgments in mandamus directing the reinstatement of two former Philadelphia County employes to the positions from which they alleged they had been. illegally dismissed. The City of Philadelphia was directed to reimburse plaintiffs for salaries found to have been unlawfully withheld, less money which they may have received during the period of improper dismissal. Counsel agreed that since the facts in each case were identical, the appeals should be argued together. The City states that these appeals: are test eases and affect the question of the reinstatement of more than 300 other such employes.

The issue raised by this litigation grows out of the adoption of the City-County Consolidation Amendment to the Constitution of the Commonwealth, the First Class City Home Rule Act of April 21, 1949, P.L. 665, 53 PS §3421.1 et seq., and the. Philadelphia Home Rule Charter adopted April 17, 1951. See Carrow v. Philadelphia, 371 Pa. 255, 89 A. 2d 496; Lennox v. Clark, 372 Pa. 355, 93 A. 2d 834.

Consolidation of County and City functions was unquestionably wise. Geographically the area of the City and of the County was identical. On occasion, governmental functions conflicted or were duplicated. In the interest of efficiency and economy, it was regarded wise to have a single directing head.

Upon consolidation of the City and County functions, the drafters of the enactment were confronted with a perplexing problem. City employes were under civil service status, whereas County employes were not. It was most apparent that it would be unjust and inequitable to require City employes again to be subjected to another competitive examination for a position which they already held under the former civil service provisions. It is obvious that it would have been even more unjust and inequitable to require non civil service employes (in the present case former County, but now City employes) to take a competitive examination. To legislate for this situation Section A-104 of Chapter A of the Charter provided: “Section A-104. Civil Service Status Of Present Employees. Employees holding positions in the classified service at the time of the adoption of this charter who were appointed after test and certification to such positions, shall be continued in their respective positions without further examination, until lawfully separated from their positions. Employees of the City at the time of the adoption of this charter and employees of any other governmental agency who may become employees of the City by virtue of amendment of the Constitution of the Commonwealth of Pennsylvania and the enactment of any legislation required by such amendment, who were not appointed after civil service test and certification shall also be continued in their respective positions provided that within one year after this charter takes effect or within one year after any such constitutional amendment and such legislation become effective they pass a qualifying test prescribed by the Personnel Director and approved by the Civil Service Commission. Those who fail to so qualify shall be dismissed from their positions within thirty days after the establishment of an eligible list for their respective positions. Nothing herein shall preclude the reclassification or reallocation as provided by the civil service regulations of any position held by any such employee.” (Italics supplied)

The “qualifying test” of non civil service employes, as set forth in the annotation to the foregoing section, is described as follows: “(b) Non-civil service employees under the 1919 Charter or civil service employees thereunder not employed after a civil service test and certification automatically retain their employment status for a period of one year. To remain thereafter in the employ of the City as civil service employees they must take and pass a qualifying examination. The examination required is not intended to be a competitive test nor need it be a written one. Its sole purpose is to establish that a former non-civil service employee or employee [sic] not appointed pursuant to test and certification meets certain minimum qualifications necessary to perform the duties of the position which he holds. Experience and a previous record of satisfactory performance are factors to be considered in the test rating. It is not the intention of this section to take off the City payroll employees who have faithfully and creditably performed their duties of employment prior to the effective date of this Charter merely because they Avere not civil service employees pursuant to test and certification under the 1919 Charter. The presumption should be that such employees are qualified to continue their employment but as civil service employees. To protect the- interest in the respects noted of such employees, it is required that the CíaúI Service Commission itself in this instance shall approve the qualifying test prescribed by the Personnel Director.

“3. The comments above are equally applicable to County employees who may become City, employees by virtue of City-County consolidation.” (Italics supplied)

This Court considered these constitutional and statutory provisions. Chief Justice Horace Stern, in Carrow v. Philadelphia, 371 Pa. 255, 89 A. 2d 496, said (p. 253) : “. . . But the question naturally arose as to what was to be done in regard to employes of the county offices who, by virtue of the City-County Consolidation Amendment, — the likely adoption of which was then in contemplation — would become employes of the city instead of the county and who had never been under civil service regulations. It would manifestly have been unjust to provide that such employes should thereupon automatically lose their jobs, or that they might be dismissed at the arbitrary will of their employing officer, thereby making possible the retention of a spoils system which permitted such dismissals for purely political reasons; on the contrary, therefore, the framers of the charter obviously planned to bring all these former county employes as soon as possible under the protection of civil service, the same as governed city employes already enjoying that protection. It was evidently further thought, however, that these new city employes should not be compelled to take the regular competitive examinations required of new applicants, but that their previous service, in some cases extending over many years, should entitle them, by reason of the experience thus gained, to a less rigorous qualifying test. Accordingly it was provided by section A-104 of the Charter that those who might become employes of the city by virtue of amendment of the constitution, and who had not been appointed after civil service test and certification, should ‘also be continued in their respective positions provided that within one year after this charter takes effect . . . they pass a qualifying test prescribed by the Personnel Director and approved by the Civil Service Commission’, and that those who failed so to qualify should ‘be dismissed from their positions within thirty days after the establishment of an eligible list for their respective positions.’ This language is so clear that he who runs may read. The former county employes were to be given the opportunity of maintaining their positions by passing a qualifying test at some time during the period of a year. If before such opportunity were afforded them they could be discharged by their employer without cause this provision of the section would be so extremely deceptive, not to say wholly meaningless. . . (Italics supplied in part)

It is interesting to note in the above case that the defendants even then contended that, because the Consolidation Amendment provided that County officers should continue “to perform their duties”, this means that such officials should continue to have the power to dismiss their employes at will. This contention was succinctly answered by the Chief Justice in the Garrota case, supra, (p. 261) : “Defendants urge that because the City-County Consolidation Amendment provided that the county officers should continue ‘to perform their duties’, this meant that they should continue to have the power to dismiss their employes at will. Such an interpretation is wholly beyond reason. This provision did not purport in any manner whatsoever to deal with the relations between the county (now city) officers and their employes or with the latter’s employment status. As to the provision in the amendment that the county officers should continue to be ‘organized’ in the manner provided by the Constitution and the then existing laws, this obviously refers, not, as appellants mistakenly claim, to the county offices, but to the county officers, and covers the case of County Commissioners who were ‘organized’by legislation into a board for the transaction of their business.” (Italics supplied in part)

Defendants in the Garrow case, supra, raised two other questions not specifically treated in the text of the Charter, viz.: (a) was removal for cause permitted and (b) wbat is the status of the employe should his services be no longer needed. In answer, this Court, again speaking through the Chief Justice in the Carroto case, supra, said (p. 262) : “It is defendants’ final contention that, if it had been intended to continue the county office employes in their positions until they were given the opportunity to qualify by test, there would at least have been a provision that they could meanwhile be removed for cause. Such a provision, however, was unnecessary since it is implicit in every relationship of employer and employe that if the latter violates the conditions of his employment, and fails to render efficient service, the employment may be terminated as in the case of any other failure of a party to perform a contractual obligation.

“It remains only to add that nothing herein contained must be understood as preventing the dismissal of employes if the positions they occupy are no longer required, — in other words, if by reason of lack of funds or work the force should be reduced. In that event, however, as stated in the annotation of the Drafting Committee to subsection (o) of section 7-401 of the Charter, layoffs for any such reason should be determined on the basis of service efficiency and seniority considerations.”

Section A-104 of the Philadelphia Home Rule Charter, supra, provides that the “qualifying test” relating to non-civil service employes shall be given during a fixed period, viz.: “within one year”. Once again, speaking through our Chief Justice, we said, in Lennox v. Clark, 372 Pa. 355, 93 A. 2d 834, (p. 360) : “The City Solicitor has urged upon us the extreme importance of a prompt disposition of these cases in view of the fact that the Home Rule Charter provides (section A-104) that employes of any governmental agency becoming employes of the city by virtue of the City-County .Consolidation Amendment and the enactment of any legislation required by such amendment, who were not appointed after civil service test and certification shall be continued in their respective positions provided that within one year after the Charter takes effect or within one year after such constitutional amendment and legislation become effective they pass a qualifying test prescribed by the Personnel Director and approved by the Civil Service Commission. We held in Carrow v. Philadelphia, 371 Pa. 255, 89 A. 2d 496, that such employes were entitled to retention in service until afforded the opportunity to pass such qualifying test. It is our judgment that the year governing is thé one that began with the effective date of the Charter, January 7,1952, but that the time thus fixed was directory, not mandatory, and that the employes concerned cannot be deprived of their right to take the test either because of the failure of the proper authorities to conduct the necessary examinations or because of any pre-existing uncertainty as to the law, and that, therefore, a further reasonable period of time must be allowed such employes for that purpose.” (Italics supplied)

. It is plain, therefore, that the drafters of the City Charter, of whom the learned City Solicitor was one, and also the voters of the City and County who accepted and enacted the Charter which the Commissioners presented, declared in most' unequivocal language that after the consolidation of City and ■ County ■ functions the. City employes already functioning; under civil service should not be disturbed and' that non civil service employes should be given a token or. qualifying examination to impress such employes with the. status of civil service employment. Thereafter the entire personnel of the. City (.except where. otherwise provided) should, .all,..be. .civil, .service ..employes. .Realizing...that there would be many difficult and involved legal problems in connection with the adoption and administration of the Charter and its multiple provisions, the period of one year was given within which the qualifying examination might be taken and, accordingly, this Court decided, as above recited, that such period was merely directory and that the employes concerned could not be deprived of their right to take such examination because of (a) failure of the proper authorities to conduct the examination, or (b) delay in the legal determination of uncertainty in the law. Underlying the entire legal philosophy was the acceptance of the doctrine of civil service and the rejection of the practice of dismissals for purely political reason, i.e., operation under the spoils system. This Court decided, despite the absence of specific language in the Charter, that an employe could be dismissed for “just cause” or if the position had been discontinued or became unnecessary.

With the existence of this background we examine the facts. Plaintiff, a County of Philadelphia employe, was lawfully employed in the Sheriff’s office on and prior to November 6, 1951. Upon the adoption of the amendment to the Constitution and the consequent consolidation, above referred to, plaintiff became a City employe. On January 2, 1953, without affording him am opportunity to pass a qualifying test, the Sheriff peremptorily discharged him. The sole notice which he received was in writing and read “For just cause, your employment . . . has been terminated. . . ” In defendants’ answer it is alleged that the dismissal was for just and proper cause, viz.: “. . . Plaintiff was guilty of insubordination; he was inefficient and untidy in the performance of his duties; and he failed to cooperate during the process of the i*eorganization of the Department of the Sheriff’s office.” As it is stated that the present case affects over 300 employes, it must be assumed that all notices of dismissal were substantially similar.

For reasons not too difficult to surmise, the City has appeared to be indifferent or frankly antagonistic to the letter and spirit of the Constitution and our de-' cisions. As early as the Carrow case it appeared that the Sheriff dismissed a former County employe without cause. We affirmed the court below in its judgment of mandamus reinstating such employe. Obviously in the case now before us the City, in defending its attitude and position, has adopted the military strategy that the best defense is a vigorous offense. It has presented all manner of objections against plaintiff in seeking to evade the plain mandate of the Charter and decisions of this Court, which, however, became less convincing the more it pressed, multiplied and explained them.

We have examined the multitudinous objections. For example, it is argued that a summary judgment in mandamus should only be granted where the right is clear. But in the Carrow case the Chief Justice accurately stated, respecting the declared purposes of the Charter (p. 260) : “[The] language is so clear that he who runs may read.” It is argued that such judgment should not be rendered because of delay due to litigation. This was answered in the Lennox case, supra. The rights of an employe certainly cannot be prejudiced or lost because the City failed to conduct the examination as required by the statute or because of litigation to settle the law. Neither are we impressed with the argument that it would be inequitable to require the defendants to reinstate such employes with back pay, if they were illegally dismissed. The fact that over 300 employes were dismissed, and not merely the two involved in this case, makes it even more imperative that the law should be obeyed and not evaded. Perhaps the. most extraordinary contention of the City Solicitor is that plaintiff should not secure relief because of legal technicalities. On the contrary, curiously enough, it is the defendants who are resorting to technicalities and not the plaintiff.

Despite the Herculean effort of defendants to dispossess all County employes contrary to the plain provisions of the Charter and this Court’s decisions, the single controlling question is the legality of their dismissal and particularly the sufficiency of the method employed for the removal of such employes “for cause”. In Carrow v. Philadelphia, supra, we decided a former County employe could not be discharged for political reasons but only for “just cause”. As above stated, the plaintiff received a written notice which read, “[f]or just cause” the employment was terminated. No facts or reasons constituting “just cause” were given, however, nor were the discharged employes given any hearing or indeed any opportunity to learn the derelictions with which they were charged, and to present a defense thereto. This was a violation of fundamental justice and of the rights given them by the Charter.

When plaintiff filed his complaint in mandamus he alleged such assigned reason was insufficient at law. Defendants answered that the plaintiff was insubordinate, inefficient, untidy and did not cooperate. It is contended by defendants that this is a sufficient statement of “just cause” which raises a question of fact to be determined either by a jury or the Civil Service Commission. The discharge was invalid and the answer setting up new facts comes too late to validate it.

It is to he remembered that the City asserts that this is a “test” case and involves over 300 employes who, it is stated, are in precisely the same position as the present plaintiffs. Had the Charter intended that the employing officer could dismiss at his arbitrary will, the Carrotv case would necessarily have been decided the other way, and there would have been no necessity for this Court to decide that prior to the qualifying test the employe could be dismissed “for cause”. With the plan of the City-County consolidation so plainly outlined and interpreted by this Court, the “cause” for dismissal was obviously intended to be analogous to that “cause” which enables an employe to be removed from a civil service job. True, this proceeding is not before the Civil Service Commission since the qualifying test has not been given, or even prescribed by that body, and consequently such employe is not yet a full civil service employe. But such employe clearly must be given a notice containing facts or reasons for his dismissal with the right to answer any charge against him and a hearing thereon.

Even should plaintiff (and the other 300 or more similar employes) not possess the status of a full civil service employe until he had taken and passed the qualifying test as directed by the Charter, nevertheless, such employe is entitled to notice of the charges and a reasonable opportunity to reply. As early as 1625 — three centuries ago — in Bagg’s Case, 11 Coke Rep. 93b, 77 Eng. Rep. 1271, an almost similar case arose in England and was decided as the learned court below ruled in this one. Lord Coke said (p. 1279-80) : “And although they have lawful authority either by charter or prescription to remove anyone from the freedom, and that they have just cause to remove him; yet it appears by the return, that they have proceeded against him without hearing him answer to what was objected, or that he was not reasonably warned, such removal is void, and shall not bind the party, quia quicunque aUquid statuerit parte inaudita altera, aequum licet statuerit, haud aequus fuerit, and such removal is against justice and right.” (Italics supplied) The translation of the Latin quotation is as follows: “He who decides, any matter without hearing both sides, though his decision is just, is himself unjust.” The learned counsel for appellee notes that the stated principle of law was originally from Medea, the work of the Roman philosopher and moralist, Seneca, written almost 2,000 years ago. Coke in his report of the case here adopts the quotation as a fundamental principle of law thus stated in Seneca’s poetic words. Blackstone terms the quotation as the “rule of natural reason expressed by Seneca.” 4 Blackstone Comm. 283. See also: Walton v. Davis, 188 Ga. 56, 2 S. E. 2d 603; Thompson v. Civil Service Commission of Provo City, 103 Utah 162, 134 P. 2d 188; Commonwealth ex rel. Bowman v. Slifer, 25 Pa. 23, 28; Field v. The Commonwealth, 32 Pa. 478; Commonwealth ex rel. v. Gibbons, 196 Pa. 97, 46 A. 313; Lumley v. Hughestown Borough Town Council, 362 Pa. 532, 534, 66 A. 2d 833.

In the present facts it is obvious that the dismissals constitute an attempt to make possible the retention of the spoils system — -such dismissals being for purely political reasons. The device employed is transparently apparent. We are not naive enough to be persuaded that with one fell swoop over 300 County employes became so insubordinate, inefficient, untidy and uncooperative as to warrant their immediate removal “for cause”. In the interest of justice, as well as for economy under the present state of the record, we refuse to sanction trials of fact in over 300 employe removal cases. Defendants are directed to immediately obey the mandate of the Constitution and our decisions. If the employes successfully pass the qualifying test and become City employes under civil service, they may thereafter be removed, where legally justified, in the manner provided by law.

We are not impressed with the argument of the learned City Solicitor that to reinstate over 300 illegally removed employes who have been separated from the City’s. service for more than two years, will result in claims against the City Treasury of more than two million dollars. Even if true, this is no valid reason against the lawful reinstatement of such illegally dismissed employes. But it is to be noted that this Court and the Superior Court have held that credit must be allowed for any amount received by the illegally removed employe from other employers during the period of the illegal separation. Doubtless, this will greatly reduce the amounts of the claims. See: Seltzer v. Reading, 340 Pa. 573, 17 A. 2d 872; Steiner v. Reading, 341 Pa. 164, 19 A. 2d 283; Seltzer v. Reading, 151 Pa. Superior Ct. 226, 30 A. 2d 177.

We have read with approval the scholarly opinion of Judge MacNeille in the court below.

The judgments are affirmed.