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.
[ 169 Pa. Super. Page 169]
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
[ 169 Pa. Super. Page 170]
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, [2 A. 108]; Price v. Conway, 134 Pa. 340, 341, [19 A. 687, 8 L.R.A. 193]; * * * Troop v. Franklin Savings & Trust Co., 291 Pa. 18 [139 A. 492]. 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 [161 A. 551].'
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 ...