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January 12, 1954


Appeals, Nos. 189 and 190, Jan. T., 1953, from order of Court of Common Pleas No. 7 of Philadelphia County, June T., 1952, Nos 1258 and 1259, in case of Civil Service Commission of City of Philadelphia v. Walter Cummings and Edwin Jones, Jr. Order reversed


John Patrick Walsh, with him Leon Rosenfield and Walsh, Tubis & Dunn, for appellants.

Jerome J. Shestack, with him Richard H. Markowitz, Assistant City Solicitor, Robert M. Landis, First Deputy City Solicitor and Abraham L. Freedman, City Solicitor, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Chidsey

[ 376 Pa. Page 201]


Appellants, Edwin Jones, Jr. and Walter Commings, are hosemen in the Fire Department of the City of Philadelphia. At the time of the incident which occasioned this litigation, Jones was the regular driver of a thirteen ton fire truck operated by Rescue Squad No. 2 and Commings was the Acting Lieutenant in charge of the truck. On December 4, 1951, at about

[ 376 Pa. Page 2025]

:30 P.M., Jones, Cummings and three others manned the fire truck in response to an alarm, originating from an alarm box in the vicinity of Orthodox and Large Streets.

They proceeded east on Orthodox Street and were following Pumper No. 20, driven by hoseman Joseph Lamack. While Jones' attention was momentarily diverted by a truck from another fire company approaching the fire from Large Street, Lamack, in an endeavor to use the nearest hydrant, made an abrupt stop after clearing the intersection at Large and Orthodox Streets. When Jones looked ahead again and saw that Lamack had stopped, he applied his brakes and swerved the truck, but nevertheless struck the rear of the pumper truck. The ensuing crash damaged both pieces of apparatus and injuries were sustained by eight men.

While Jones and Cummings were confined to the hospital as the result of injuries they sustained in the accident, a Fire Board of Investigation took testimony and found both men chargeable with disobedience of General Order No. 18 establishing a minimum safe distance to be observed between fire apparatus going to and returning from a fire. Discipline having been recommended by the Fire Board, the Deputy Fire Commissioner ordered that both Jones and Cummings be suspended without pay for 10 days and in addition perform 20 days' extra duty without pay for the infraction of this rule of the Fire Department.

They appealed from this order to the Civil Service Commission which assumed jurisdiction of their appeals because it concluded that the 20 days of extra duty without pay really constitute a 20 day suspension, making the total period of suspension 30 days.*fn1

[ 376 Pa. Page 203]

Although the 20 days' extra duty can not be literally construed as a suspension, the extended disciplinary penalty thus imposed being more punitive than a suspension, an appeal therefrom was undoubtedly available to the firemen. After hearing the testimony of appellants and other witnesses, the Commission decided that neither Jones nor Cummings was chargeable with misconduct under the circumstances. It appears from its opinion that the conclusion arrived at was predicated upon the determination that the standard of care prescribed by the rule in question was too exacting for application under the conditions here prevailing. The Commission thereupon sustained the appeal in part by countermanding the imposition of the 20 days' extra duty without pay and leaving intact the 10 day suspension. Appellants excepted to the conclusions of law and decision of the Commission and appealed to the common pleas court on the ground that having been absolved of misconduct, their appeals to the Commission should have been sustained in their entirety. The learned judge below dismissed appellants' appeals because he concluded that the Commission, having found as a fact that Jones was apparently following Lamack a little too closely, might have considered them guilty of negligence and therefore the 10 day suspension was left intact because the appellants' conduct warranted the imposition of some measure of discipline. From the lower court's order dismissing the appeals the present appeals are taken.

The Philadelphia Home Rule Charter, which was adopted by the electors on April 17, 1951, with its effective date January 7, 1952, provides in Section 7-201 that "Findings and decisions of the Commission and any action taken in conformance therewith as a result thereof shall be final and there shall be no further appeal on the merits, but there may be an appeal to

[ 376 Pa. Page 204]

    the courts on jurisdictional or procedural grounds.". The Act of September 29, 1951, P.L. 1654, 53 PS ยง 304, provides that "All decisions of the civil service board or commission in any city shall be subject to appeal to the court of common pleas or the county court of the county in which the city is located....".

We are not compelled at this time to decide which enactment is controlling for the instant question can be resolved in accordance with either one. On appeals from the Civil Service Commission, Courts of Common Pleas in Philadelphia are invested, both under the Charter and the Act of Assembly, with some measure of review, since under either they may inquire into the jurisdiction of the Commission and the regularity of the proceedings there conducted: Philadelphia Civil Service Commission v. Wilson, 373 Pa. 583, 586, 96 A.2d 863.

The only question with which we are confronted is whether the proceedings on their face justified the result reached by the Commission. The violation with which appellants were charged was disobedience of a positive rule of action adopted by the Fire Department requiring a minimum safe distance of 150 feet between fire apparatus. The Commission having carefully reviewed the testimony and having considered the circumstances surrounding the accident, must have treated the rule as flexible and not applicable to a situation where fire trucks are in close proximately to the very scene of the fire.

In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion is left except what necessity may demand. See Citizens' Insurance Co. of Pittsburgh v. Marsh, 41 Pa. 386, 394.

Admittedly Jones, just before the collision, was only 100 feet to the rear of Pumper No. 20 and therefore

[ 376 Pa. Page 205]

    apparently transgressing an established and definite rule of action. The Commission being cognizant of the rule and Jones' noncompliance therewith, we search in vain for any possible reason which would support a finding of no misconduct other than the one previously alluded to, namely, that the Commission felt the rule was not to be literally applied in all circumstances. We are not prepared to say that the Commission erred in refusing to apply the rule under the circumstances here presented.

Since this Court must read the Commission's order in the light of its opinion and the opinion exonerates the employes of misconduct, the only course open to it was to reinstate appellants with full remuneration. An order at variance with its finding can not be permitted to stand, and the court below erred in sustaining the order of the Commission.

The order of the court below is reversed and it is directed that the appellants be reinstated without loss of pay.


The order of the court below is reversed and it is directed that the appellants be reinstated without loss of pay.

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