Appeal, No. 168, Jan. T., 1957, from judgment of Court of Common Pleas of Delaware County, June T., 1955, No. 787, in case of George S. Mitchell, Jr. v. Chester Housing Authority. Judgment reversed.
Vincent P. Desmond, for appellant.
Guy G. deFuria, with him J. Robert Twombly and deFuria, Larkin & deFuria, for appellee.
Thomas D. McBride, Attorney General, with him Joseph L. Donnelly, Deputy Attorney General and Charles H. Stone, Legal Assistant, for Commonwealth, amicus curiae.
Before Jones, C.j., Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE CHIDSEY
This is an action in assumpsit for breach of an employment contract brought by George S. Mitchell, Jr., the former Secretary-Executive Director of the defendant body, against the Chester Housing Authority, a corporation created pursuant to the Housing Authorities Law, Act of May 28, 1937, P.L. 955, 35 PS § 1541 et seq.
The Housing Authority is composed of five members who serve without compensation for five-year terms, and in the case of Chester, a third class city, the Housing Authorities Law provides that two members of the Authority shall be appointed by the Mayor of the City and the other three members shall be appointed by the Governor, all for staggered terms so that the term of office of one member shall expire each year, Act of 1937, May 28, P.L. 955, §§ 5 & 6, 35 PS §§ 1145, 1546.Section 7 of the Housing Authorities Law, 35 PS §§ 1547, provides inter alia: "The Authority may employ a secretary, such technical experts, and such other officers, agents, and employes, permanent or temporary, as it may require, and may determine the qualifications of such persons. ... Any Authority may employ its own counsel and legal staff. ... An Authority may delegate to one or more of its agents or employes such of its powers as it shall deem necessary to carry out the purposes of this act, subject always to the supervision and control of the Authority."
The by-laws of the Chester Housing Authority contain the following pertinent provisions in Article II, entitled Officers:
"Section 4 - Secretary. The Secretary shall keep the records of the Authority, shall act as secretary of the meetings of the Authority and record all votes, and shall keep a record of the proceedings of the Authority in a journal of proceedings to be kept for such purpose, and shall perform all duties incident to his office. He shall keep in safe custody the seal of the Authority and shall have power to affix such seal to all contracts and instruments authorized to be executed by the authority.
"The compensation of the Secretary shall be determined by the Authority, provided that a temporary appointee selected from among the members of the Authority shall serve without compensation, other than the payment of necessary expenses.
"The Secretary shall hold office for an indefinite term at the pleasure of the Authority. ...
"Section 8 - Executive Director. The Secretary shall be the Executive Director of the Authority and shall have general supervision over the administration of the business and affairs of the Authority, subject to the direction of the Authority. He shall be charged with the management of the housing projects of the Authority. The Executive Director shall countersign all checks issued by the Authority."
On June 4, 1939 the plaintiff was appointed by the Chester Housing Authority to act as Secretary and Executive Director, and served in that capacity on a month to month basis without written contract*fn1 until
November 18, 1954. On November 8, 1954, a new Governor of the Commonwealth, with power to appoint a majority of the members of the Housing Authority, was elected to take office the following January. Three days later, on November 11, 1954, a special committee, which had been appointed by the Chairman of the Authority the previous month to look into the matter, met with plaintiff in attendance as committee secretary and, by a vote of two to one, recommended to the authority that it enter into contracts for a definite term of years with "key personnel", among them the plaintiff Secretary-Executive Director. The following week, on November 18, 1954, the Authority, by vote of four to one, adopted the recommendation of ...