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FRANCIS v. CORLETO ET AL. (09/17/64)

decided: September 17, 1964.

FRANCIS
v.
CORLETO ET AL., APPELLANTS



Appeals from judgments of Court of Common Pleas No. 5 of Philadelphia County, Dec. T., 1961, No. 4315, in cases of John E. Francis et al. v. Fred T. Corleto, Commissioner of Public Property of Philadelphia, et al.

COUNSEL

Matthew W. Bullock, Jr., Deputy City Solicitor, with him James L. Stern, Second Deputy City Solicitor, and Edward G. Bauer, Jr., City Solicitor, for appellants.

Domenick Vitullo, with him A. Charles Peruto, for appellees.

Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Woodside, J. Dissenting Opinion by Wright, J.

Author: Woodside

[ 204 Pa. Super. Page 282]

We have before us appeals from the entry of judgments for the plaintiffs on the pleadings in actions in mandamus brought to require the payment of certain monies by officials of the City of Philadelphia.

The plaintiffs, John E. Francis and Harold V. Varani, were discharged on May 6, 1961, by the City of Philadelphia from their positions as Deputy Commissioner of Public Property and Director of Architecture and Engineering in the Department of Public Property, respectively. Subsequently they were indicted and tried for illegal conspiracy to defraud, accepting bribes, extortion and conspiracy arising out of the improper performance of their duties in connection with the repairing of the city-owned Frankford Elevated transportation line.

Francis was convicted on twelve separate charges, and on appeal to this Court, seven of those twelve were upheld. See Commonwealth v. Francis, 201 Pa. Superior Ct. 313, 191 A.2d 884 (1963), allocatur denied 201 Pa. Superior Ct. XXVI, cert. den., 375 U.S. 985 (1964). Varani was tried and acquitted.

When the plaintiffs were discharged from their position with the city, they demanded (1) the return of the contributions withheld by the city for them on account of the city pension fund and (2) payment of the monetary equivalent of their unused vacation, designated "terminal vacation pay."

Upon the refusal of the city to comply with their demands, they brought these actions in mandamus naming as defendants three Philadelphia officials -- the Commissioner of Public Property, the Controller and the Treasurer. The plaintiffs alleged the termination of their employment, the demand and refusal of payment, the amounts of the contributions withheld and the value of the unused vacation. The city officials filed preliminary objections which were dismissed.

[ 204 Pa. Super. Page 283]

An answer was then filed by the city officials denying that the plaintiffs were entitled to the sums claimed because of "improprieties, misconduct, and criminal acts," and alleging under "New Matter," the affirmative defense of set-off arising out of financial losses to the city as a result of the plaintiffs' conduct during their employment. The plaintiffs then moved for judgments on the pleadings which were granted, the court below stating that it "deem[ed] the entire matter to be one of ministerial duty."

The defendants raise at the outset the question of whether the extraordinary remedy of mandamus lies in this case, contending that assumpsit, the usual remedy when disputes arise over ...


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