Appeal, No. 244, March T., 1957, from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1956, No. 2013, in case of Lewis R. Fawcett v. The Monongahela Railway Company. Judgment reversed.
Frederic G. Weir, with him Thomas Park Shearer, Calvin K. Prine and Oliver, Brandon & Shearer, for appellant.
Bruce R. Martin, with him Pringle, Bredin & Martin, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE BELL
Plaintiff filed a complaint in assumpsit claiming $50,000 damages for lost wages and other benefits as a result of an unlawful discharge. Defendant filed preliminary objections. The lower Court sustained the preliminary objections with leave to plaintiff to amend within 30 days. Plaintiff filed an amendment to the complaint; defendant filed preliminary objections to plaintiff's complaint as amended; the Court sustained the objections.
Plaintiff, a yardmaster for defendant Company, was dismissed on January 16, 1956 after a hearing because he was "found guilty of conduct unbecoming to an employee", to wit, he had "permitted another employee who was off duty and intoxicated to bring alcoholic beverages on Company property in plaintiff's charge, and also permitting the same employee to bring a female on Company property in plaintiff's charge for immoral purposes." Plaintiff was advised by the Company, before the hearing, of the date, place and time at which these breaches of duty occurred. He was a member of the Brotherhood of Railroad Trainmen who appeared (in his behalf) with him at the hearing.
The parties and the Court below seemed to feel that the basic question was whether plaintiff had a right to seniority. There is no natural or vested right to seniority. Seniority arises only as a result of a contract express, or clearly implied: Madera v. Monongahela Rwy. Co., 356 Pa. 460, 52 A.2d 329; Polanskey v. Monongahela R.R. Co., 342 Pa. 188, 19 A.2d 377.
The lower Court found there was no contract for seniority, and even if there had been it would not prevent employer from discharging employee. However, the Court below overlooked the fact that plaintiff, in his amendment to his original complaint, averred: "Said employment contract between the plaintiff and defendant was oral in nature and the plaintiff does not recall the person employing him on behalf of the defendant, but avers that such hiring was done on or about October 16, 1939, as a member of the Group No. 2 Roster, and it was then and there agreed between the parties that his seniority should begin to accrue on such roster from that date."*fn* Plaintiff then averred a similar oral agreement when he was promoted from Group No. 1 to Group No. 2, and when he was promoted on June 5, 1953 to the Yard Masters Roster. Plaintiff attached as exhibits to his amended complaint rosters of employees with his name thereon, one of whose headings was "Seniority Standing". These averments, being averments of fact, are admitted by the preliminary objections, although plaintiff should have averred the position which the person who employed him occupied, especially since he could not recall his name, and that that person had authority from the defendant to promise and agree to seniority.
In Gardner v. Allegheny County, 382 Pa. 88, 114 A.2d 491, the Court said (page ...