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CITY DUQUESNE CIVIL SERVICE COMMISSION v. BERNARD BALLOUGH (12/16/74)

decided: December 16, 1974.

CITY OF DUQUESNE CIVIL SERVICE COMMISSION, APPELLANT,
v.
BERNARD BALLOUGH, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Appeal of Bernard Ballough v. City of Duquesne Civil Service Commission, No. S.A. 404 of 1972.

COUNSEL

Norman M. Bartko, for appellant.

John J. Kirk, for appellee.

Judges Crumlish, Jr., Kramer and Mencer, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 16 Pa. Commw. Page 265]

The Court of Common Pleas of Allegheny County sustained an appeal by Bernard Ballough (Appellee)

[ 16 Pa. Commw. Page 266]

    from the determination of the Civil Service Commission of the City of Duquesne (Commission) which upheld the reduction in rank of Appellee, a fireman in the City of Duquesne, from the position of Driver 1 to Hoseman. On January 16, 1972, Appellee was dismissed from the position of Driver 1 and demoted to Hoseman by letter from the Director of the Fire Department (Department). The Commission on appeal from the Department's determination, convened a hearing with three members presiding, but did not make a formal record. On appeal to the Court of Common Pleas, the court remanded the proceedings to the Commission for the purposes of making a record, and upon remand with one Commissioner sitting, a record was made. The Commission again sustained the reduction in rank, the Court of Common Pleas again reversed the Commission, and this appeal followed.

Underlying the Commission's rejection of Appellee's appeal was the rationale that he was outside the protective scope of the Fireman's Civil Service Act (Act), Act of May 31, 1933, P.L. 1108, as amended, 53 P.S. § 39861 et seq., because promotions of Appellee to the ranks of Driver 2 and Driver 1 were invalid in that appropriate examination procedures*fn1 required under the Act were not followed. Since the Civil Service Examinations are conditions precedent to these promotions, the Commission concluded that Appellee was not entitled to assert the protection of the "just cause requirement"*fn2 of the Act.

[ 16 Pa. Commw. Page 267]

On appeal to the Court of Common Pleas, the question of whether Appellee was or was not subject to the just cause requirement was never reached since the court found that two procedural deficiencies which had occurred before the Commission were sufficient to sustain the appeal. Because we are in agreement with the court below on the question of these procedural irregularities, we too do not reach the just cause issue.

Initially, the court below held that the Commission had failed to observe the notification requirements of Section 10, 53 P.S. § 39870, which states, inter alia : "No member of any fire department . . . , subject to civil service within the terms of this act, shall be suspended for a period in excess of three days or removed, discharged, or reduced in rank or pay except for just cause, which shall not be religious or political, nor, in any event, except in the case of a suspension, under conditions making the furnishing of a written statement impractical at that time, until he shall have been furnished with a written statement of the reasons for such ...


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