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LOFTUS v. CARBONDALE (04/13/61)

April 13, 1961

LOFTUS, APPELLANT
v.
CARBONDALE



Appeal, No. 7, Feb. T., 1961, from judgment of Court of Common Pleas of Lackawanna County, March T., 1959, No. 45, in case of William J. Loftus v. City of Carbondale. Judgment affirmed.

COUNSEL

George I. Puhak, with him Maurice V. Cummings, for appellant.

Bernard J. Brown, City Solicitor, for City of Carbondale, appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Watkins

[ 195 Pa. Super. Page 53]

OPINION BY WATKINS, J.

This is an appeal from a judgment entered, in an action of assumpsit, in the Court of Common Pleas of Lackawanna County, in favor of the City of Carbondale, the defendant-appellee, and against William J. Loftus, a civil service employee, the plaintiff-appellant, who brought the suit for wages alleged to be due him because of an unwarranted suspension.

Carbondale is a city of the third class in Lackawanna County, Pennsylvania. Its fire department is

[ 195 Pa. Super. Page 54]

    made up of volunteer firemen but it has some paid firemen, including the appellant herein. On November 18, 1959, the appellant had an altercation with the mayor of Carbondale in that he became violent in manner, loud and abusive in speech before witnesses, and as a result was suspended for ten days by the mayor. He continued to report for work and continued in the employment of the city after the passage of the ten day period.

When he was offered a check for his services, less the ten day period of suspension, he refused to accept it and instituted this action in assumpsit for his bimonthly pay of $130.23. The suit was tried before President Judge HOBAN without a jury and judgment was entered for the city. Exceptions were dismissed by the court en banc, consisting of the trial judge and ROBINSON and NEALON, JJ.

We do not have to decide the question as to whether a mayor of a third class city, under his duties to supervise the conduct of all city officers and the affairs of the city, as provided in The Third Class City Code, 1931, P.L. § 932, Art. XII, § 1204, as amended, 1951, P.L. § 662, Par. 12.2, 53 PS § 36205, has equal power with the department head to "suspend any employe of such department for a period of ten days with or without pay without preferring charges and without a hearing of council." The Third Class City Code, supra, § 4408, 53 PS § 39408. It is not properly before us.

The procedure is clearly set forth in The Third Class City Code for an aggrieved employe to determine the legality of the suspension itself and the court below and this Court cannot hear it raised by assumpsit. Rush v. Philadelphia, 62 Pa. Superior Ct. 80(1916); Kohn v. Philadelphia, 156 Pa. Superior Ct. 112, 39 A.2d ...


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