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MYRON WOLKOFF v. JOHN OWENS (01/15/74)

decided: January 15, 1974.

MYRON WOLKOFF, ANTHONY COGNETTI, THOMAS FRANCIS, VINCENT MANZO, AND JAMES DOHERTY, ALL COUNCILMEN OF THE CITY OF SCRANTON, AND EUGENE J. PETERS, MAYOR OF THE CITY OF SCRANTON, DAVID DAVIS, TREASURER OF THE CITY OF SCRANTON, WILLIAM P. FELDCAMP, JR., CONTROLLER OF THE CITY OF SCRANTON, ANTHONY BATSAVAGE, DIRECTOR OF THE DEPARTMENT OF PUBLIC SAFETY OF THE CITY OF SCRANTON, AND THE CITY OF SCRANTON, APPELLANTS,
v.
JOHN OWENS, CHESTER CIMINI, ALBERT KATHALYNAS, GEORGE ZVIRBLIS, ANTHONY GUSTAITIS, PETER MALARKEY, JOSEPH OWCA, FRANK EVANS, A. CHESTER LENCESKI, WILLARD GETZ AND ALBERT RICHARDS, APPELLEES



Appeals from the Order of the Court of Common Pleas of Lackawanna County in case of John Owens, Chester Cimini, Albert Kathalynas, George Zvirblis, Anthony Gustaitis, Peter Malarkey, Joseph Owca, Frank Evans, A. Chester Lenceski, Willard Getz and Albert Richards v. Myron Wolkoff, Anthony Cognetti, Thomas Francis, Vincent Manzo and James Doherty, All Councilmen of the City of Scranton, and Eugene J. Peters, Mayor of the City of Scranton, David Davis, Treasurer of the City of Scranton, William P. Feldcamp, Jr., Controller of the City of Scranton, Anthony Batsavage, Director of the Department of Public Safety of the City of Scranton, and the City of Scranton, No. 370 March Term, 1972.

COUNSEL

Ralph J. Iori, Jr., with him David J. Reedy, Jr., for appellants.

Anthony P. Moses, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Blatt. Concurring Opinion by President Judge Bowman. Judge Rogers joins in this concurring opinion.

Author: Blatt

[ 12 Pa. Commw. Page 76]

This action in mandamus questions the propriety of the dismissal of the appellees from the Bureau of Police of the City of Scranton, allegedly made necessary by a lack of funds. At the time of the dismissal, all of the eleven appellees were full-time policemen on the Scranton force who were under 65 years of age, the compulsory retirement age, but who had served over 25 years and who therefore, upon their election, could retire with pension.*fn1 The policemen were notified by letter dated January 14, 1972 from the Director of Public Safety and the Superintendent of Police that, "[b]ecause of the lack of funds appropriated in the Salary Ordinance for 1972, it is necessary for me to advise

[ 12 Pa. Commw. Page 77]

    you of your retirement effective Saturday, January 15, 1972."

Mandamus has been recognized to be the proper action where the main issue is the propriety of a removal from a position which was heretofore properly held and to which reinstatement is being sought. Gernert v. Lindsay, 2 Pa. Commonwealth Ct. 576 (1971). It is undisputed here that prior to January 15, 1972, the appellees had properly assumed and held their positions, and, in seeking reinstatement, the appellees contend that their forced retirement was illegal, improper and discriminatory. To support their charge, they argue that the City continued to employ two policemen who were over 65 years of age, and nine younger police officers hired under a Federal Highway Safety Program. All of these employees, they claim, should have been released before the appellees. The lower court relied on the Act of August 10, 1951, P.L. 1189, Section 9, 53 P.S. § 23539 (Act of 1951), which applied to cities of the second class, to justify the forced retirement of employees such as the appellees herein under certain circumstances, but it held that all of these eleven policemen should not have been removed before others on the force. In essence, it concluded that the succession of dismissals was improper.

We also agree that the dismissal of the appellees was improper, but we base our conclusion on the absence of legislative authority for the entire procedure by which the removal was effectuated.

Since 1927, and by virtue of the Act of June 25, 1895, P.L. 275, Section 1, as amended by the Act of March 9, 1927, P.L. 18, 53 P.S. § 101, the City of Scranton has been a Second Class A city. See City of Scranton v. Leo Lynn, 10 Pa. Commonwealth Ct. 222, 310 A.2d 451 (1973). When the second class A classification was created, the Legislature provided this new type of municipality with interim regulations by way of the

[ 12 Pa. Commw. Page 78]

    following broad language: "Until otherwise provided by law, cities of the second class A shall continue to be governed, and shall have all the powers, privileges and prerogatives now provided by the laws of the Commonwealth relating to cities of the second class." (Emphasis added.) Act of June 25, 1895, P.L. 275, Section 2, as amended, 53 P.S. § 102 (as amended by the Act of March 9, 1927, P.L. 18). Although revisions have been made to the Act, the above quoted section has remained intact and unchanged since its enactment on March 9, 1927 contemporaneous with the creation of the new second class A classification.*fn2 Each time other parts of the statute were changed, this section was merely reenacted. This is important in determining the date to which the "now provided" language refers and, therefore, in determining which second class city laws are applicable to second class A cities under the cloak of the Amendment of 1927. The Statutory Construction Act provides that, "[w]henever a statute reenacts a former statute, the provisions ...


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