Appeals, Nos. 324 and 325, Jan. T., 1954, from judgments of Court of Common Pleas No. 3 of Philadelphia County, Dec. T., 1953, Nos. 3957 and 3952, in cases of John W. Cornman v. City of Philadelphia et al.; and George A. Maybin v. Same. Judgments affirmed; reargument refused February 7, 1955.
Abraham L. Freedman, City Solicitor, with him Harvey Levin, Abraham Wernick, Deputy City Solicitors and Jerome J. Shestack, First Deputy City Solicitor, for appellants.
Marshall H. Morgan, with him Henry J. Morgan, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, J.j.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
Two appeals have been taken 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 cases 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 Rul Act of April 21, 1949, P.L. 665, 53 PA § 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 separated from 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 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 were 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 Civil 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. 259): "... 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 lost 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 Carrow 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 officers, 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 Carrow case, supra, raised two other questions not specifically treated in the text of the Charter, viz.: (a) was removal for cause permitted
and (b) what 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 Carrow 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 the 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 an 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 ...