Appeals, Nos. 342, 343, and 344, Jan. T., 1955, from judgment of Court of Common Pleas No. 5 of Philadelphia County, March T., 1952, No. 5940, in case of Edward M. Gaul v. City of Philadelphia; from judgment of Court of Common Pleas No. 2 of Philadelphia County, March T., 1952, No. 6941, in case of Lewis L. Jacobson v. City of Philadelphia; and from judgment of Court of Common Pleas No. 5 of Philadelphia County, Dec. T., 1953, No. 3953, in case of Bessie M. Jennings v. City of Philadelphia. Judgments reversed.
Abraham L. Freedman, City Solicitor, with him Murray L. Schwartz, First Deputy City Solicitor, and Abraham Wernick, Deputy City Solicitor, for appellants.
Marshall H. Morgan, with him Henry J. Morgan and Harry R. Kozart, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE CHIDSEY
In these three actions of mandamus the City of Philadelphia and certain of its officers joined as defendants, appeal from the several judgments entered on the pleadings ordering reinstatement of the respective plaintiffs to positions in the City government from
which they had been dismissed. The cases were argued together in the court below which rendered an opinion in one case (the Jennings case) which was made applicable to the others. The cases were similarly argued together in this Court and all of them will be considered and determined in this opinion.
In Appeal No. 342 (the Gaul case) after preliminary objections to the answer filed by the defendants to the plaintiff's complaint were withdrawn, the plaintiff filed a motion for judgment on the pleadings. The case was, therefore, before the court on complaint and answer. After setting forth that plaintiff was a former county employe who had been retained in his employment after the adoption on November 6, 1951 of the City-County Consolidation Amendment, the complaint alleged: "On April 30, 1952, during the continuance of the said employment and before plaintiff had been afforded an opportunity to pass a qualifying test as provided by the Philadelphia Home Rule Charter,*fn1 the defendant, Joseph A. Scanlon, Clerk of Court of Quarter Sessions, as aforesaid, without just or proper cause and in violation of the provisions of the said Charter, unlawfully discharged plaintiff from his said employment and dismissed him from the service of the City of Philadelphia, thereby unlawfully depriving him of his right under the said Charter to be continued in the said employment and afforded the opportunity of passing the said qualifying test.". The defendants' answer averred: "... Plaintiff was discharged for just and proper cause, in that the position held by plaintiff was eliminated in the process of reorganizing the department for reasons of economy and efficiency; and for the further reason that plaintiff did not possess sufficient education, experience and qualifications to enable
him to properly and efficiently perform the duties pertaining to his position.".
Where a plaintiff seeks summary judgment on the pleadings, the allegations of the answer must be accepted as true: London v. Kingsley, 368 Pa. 109, 81 A.2d 870; Waldman v. Shoemaker, 367 Pa. 587, 80 A.2d 776; Kittaning Coal Company v. Moore et al., 362 Pa. 128, 66 A.2d 273. Therefore, the allegation in the defendants' answer that "... Plaintiff was discharged for just and proper cause, in that the position held by plaintiff was eliminated in the process of reorganizing the department for reasons of economy and efficiency; ..." must be taken as admitted. This being so, appellants contend that a sufficient defense was interposed to prevent the entry of judgment on the pleadings. On the other hand appellee, placing reliance upon our decision in Cornman v. Philadelphia, 380 Pa. 312, 111 A.2d 121, contends that he was entitled to notice and opportunity to be heard before dismissal, and the mere allegation that he was dismissed because of the abolishment of his position without further averring that he was given such notice and opportunity to be heard, was insufficient to constitute a defense preventing summary judgment.
We held in Carrow v. Philadelphia, 371 Pa. 255, 89 A.2d 496, that under § A-104 of the City Charter a county employe who became an employe of the City by virtue of the City-County Consolidation Amendment and who had never been under civil service regulations was entitled to be continued in her position until afforded the opportunity to pass a qualifying test and could not as theretofore be peremptorily discharged without cause. In the Cornman case which similarly involved a judgment entered on the pleadings, the sole allegation of the defendants in their answer as the reason for the plaintiff's discharge was that he was "insubordinate",
"untidy" and "failed to cooperate" in the performance of his duties. Thus he was discharged for delinquencies in his work, a cause personal to him as an employe. Under these circumstances we held that he was entitled to notice of the charges against him and a hearing before dismissal. Here under the pleadings the dismissal occurred for the impersonal reason that the position was abolished for reasons of economy and efficiency. Neither in Carrow nor Cornman was the employe's position allegedly abolished and consequently the question now arising out of a dismissal because of abolishment of the position was not before us. There is a basic difference between a dismissal for causes personal to the employe and dismissal as a result of the abolition of a position. Where the employe is dismissed because of failure to properly perform the duties of his employment, his position continues for performance of its duties by a successor. Where the position is abolished, it no longer exists and there is no position to which the dismissed employe can be reinstated. Moreover, where the position is abolished for reasons of economy and efficiency, there is nothing for the dismissed employe to explain or justify as there might be where the dismissal is for insubordination, untidiness, lack of cooperation or other matters personal to the employe. The employe has no voice in the elimination of a position for reasons of economy or efficiency. This is a matter solely for the judgment of the governmental authority in whom the power to eliminate the office is vested.
At the time of his dismissal plaintiff was a noncivil service employe whose status as to tenure was only that afforded him by § A-104 of the Charter, namely, the right to continue in his employment until given the opportunity to become a civil service employe by passing a qualifying test. His status as to tenure was
patently inferior to that of civil service employes who enjoyed, inter alia, the protection of civil service provisions as to notice and hearing before dismissal. Certainly the right of employes in plaintiff's category can rise no higher than the rights of employes who have attained civil service status, and we have repeatedly held that where an office held by a civil service employe is abolished, no notice or hearing need be given to the incumbent: Essinger v. New Castle, 275 Pa. 408, 119 A. 479; Leary v. Philadelphia et al., 314 Pa. 458, 172 A. 459; Boyle et al. v. Philadelphia et al., 338 Pa. 129, 12 A.2d 43. In the Essinger case a fireman who was dismissed for reasons of economy brought mandamus proceedings to compel reinstatement on the ground that under the applicable Civil Service Act he could be removed only after trial for causes specified. This Court rejected the plaintiff's contention. Mr. Justice SADLER, speaking for the Court, stated: "Civil service acts are designed to secure the appointment of competent public servants, and protect them in their employment from attacks on personal grounds, so long as they are well behaved. They are not intended to retain in office at public expense those whose services may be dispensed with for economy. 'The purpose of the civil service statute, and of other laws prohibiting the discharge of employees without cause assigned, notice, and a hearing, is to insure the continuance in public employment of those officers who prove faithful and competent, regardless of their political affiliations. These statutes are not intended to affect or control the power of the city council, or the executive officers of the city, to abolish offices when they are no longer necessary, or for reasons of economy. They are not intended to furnish an assurance to the officer or employee that he will be retained in the service of the city after the time when his services are required. They do
not prevent his discharge in good faith without a trial, and without notice, when the office or body is abolished as unnecessary, or for reasons of economy': 2 Dillon Municipal Corp. (5th ed.) 805. In the absence of some constitutional provision or legislative enactment, notwithstanding the Civil Service Act, the municipality may do away with an office created by it, though the effect is the removal of an employee from his situation: 5 R.C.L. 614. Though not the subject of previous discussion in Pennsylvania, this has been the uniform ruling in many states where consideration has been given to the question: Harker v. City of Bayonne, 85 N.J.L. 176; Washington v. Seattle, 74 Wash. 199, 133 Pac. 11; Shawanee v. Hewett, 37 Okla. 125, 130 Pac. 546; People v. Lindenthal, 173 N.Y. 525, 66 N.E. 407; Gardner v. Lowell, 221 Mass. 150, 108 N.E. 937; note, 4 A.L.R. 205.".
Counsel for appellee contends that the principal declared in the Essinger case is applicable only in the absence of some legislative requirement and that here the civil service provisions of the Charter prescribe notice and hearing before dismissal. This is a misinterpretation of the Essinger case and is contrary to the whole tenor of the opinion. It would appear that counsel misconstrues the sentence in the above quoted excerpt therefrom that "... In the absence of some constitutional provision or legislative enactment, notwithstanding the Civil Service Act, the municipality may do away with an office created by it, though the effect is the removal of an employee from his situation: ...". (Emphasis supplied). It is clear that this limitation ...