Appeal, No. 56, Jan. T., 1962, from judgment of Superior Court, Feb. T., 1961, No. 7, affirming 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 reversed.
George I. Puhak, with him Maurice V. Cummings, for appellant.
Joseph T. McGraw, for City of Carbondale, appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and Alpern, JJ.
OPINION BY MR. JUSTICE COHEN.
On November 18, 1958, William J. Loftus, a paid employee of the Fire Bureau of the City of Carbondale, Pennsylvania, a third class city, engaged in an altercation with the mayor of the city and was promptly suspended by the mayor for a period of ten days. Since the mayor was not the head of the department having jurisdiction over the fire bureau, Loftus, upon direction of the director of the fire bureau, continued to report for duty during the period of suspension, and, on November 30, 1958, demanded his full semi-monthly pay of $130.23. The city clerk refused, tendering payment only of $10.29. Loftus then filed the present suit in assumpsit against the city. Both the lower court and the Superior Court found in favor of the city; the former on the grounds both that the mayor had the power to suspend Loftus and that the court had no jurisdiction to review the suspension in an assumpsit action; the latter solely on the second ground. It appearing
that the question of the mayor's power was a novel one heretofore undecided by this Court, we granted an allocatur.
Loftus, as a paid fireman in a volunteer fire department, is entitled to the protection of the Firemen's Civil Service Act of May 31, 1933, P.L. 1108, 53 PS §§ 39861-39877. Lehman v. Hazleton, 135 Pa. Superior Ct. 410, 5 A.2d 646 (1939). A disciplinary suspension is not one of the actions against which the Firemen's Act gives protection. In this respect it is unlike Section 4408 of the Third Class City Code, Acts of June 23, 1931, P.L. 932, and June 28, 1951, P.L. 662, 53 PS § 39408, which expressly covers suspensions in departments, bureaus and positions subject to its civil service provisions.
However, Section 4402 (53 PS § 39402) of the Code limits the applicability of Section 4408 to the police department, engineering department, electrical department and the positions of building inspector, health officer or sanitary policeman or inspector. It does not apply to the fire bureau. But even if Section 4408 of the Code were improperly held to apply to the fire bureau, it still would not be decisive in this case since only the department head has the power to suspend for a period of ten days, and the mayor is not the head of the department in which Loftus was employed.
Moreover, in addition to that section's inapplicability as an authority to suspend in the present situation, the section does not provide for an appeal from a ten day suspension. No legislative authority is granted to council in Section 4408 to hear an appeal from a ten day disciplinary suspension. A reading of this section discloses that council hears charges only when something other than a ten day disciplinary suspension is involved. Consequently, a ...