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HENRY J. SCHULTZ v. JOSEPH PIRO (02/12/79)

decided: February 12, 1979.

HENRY J. SCHULTZ, MAYOR, AND THE CITY OF EASTON, APPELLANTS
v.
JOSEPH PIRO, FRED STERNER AND WAYNE UNANGST, APPELLEES



Appeal from the Order of the Court of Common Pleas of Northampton County in case of Joseph Piro, Fred Sterner and Wayne Unangst v. Henry J. Schultz, Mayor, and The City of Easton, No. 177 April Term, 1977.

COUNSEL

Henry R. Newton, for appellants.

Joel M. Scheer, for appellees.

Judges Wilkinson, Jr., DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 40 Pa. Commw. Page 396]

Effective April 5, 1977, the City of Easton (City), Co-Appellant with Henry J. Schultz, Mayor of Easton, suspended the Appellees, Joseph Piro, Fred Sterner and Wayne Unangst, from its fire department (Department) in order to reduce the number of the Department's paid members for reasons of economy. The Appellees were the three firemen most recently appointed to the Department. On the effective date of the Appellees' suspension, at least three paid firemen in the Department were eligible for retirement under the terms of the City's pension fund. The Appellees requested a hearing before the Easton Fire Civil Service Board (Board), which affirmed the City's action. The Appellees appealed from that decision to the Northampton County Court of Common Pleas, which reversed the Board and ordered the City to reinstate the Appellees as firemen. This appeal followed.

Section 11 of the Act of May 31, 1933 (Act), P.L. 1108, as amended, 53 P.S. § 39871, provides:

If for reasons of economy, or other reasons, it shall be deemed necessary by any city to reduce the number of paid members of any fire department, or the number of fire alarm operators or fire box inspectors in the bureau of electricity, then such city shall follow the following procedure:

First. If there are any paid firemen, fire alarm operators or fire box inspectors eligible for retirement under the terms of any pension fund, then such reduction in numbers shall be made by retirement on pension of all the oldest in age and service.

[ 40 Pa. Commw. Page 397]

Second. If the number of paid firemen, fire alarm operators and fire box inspectors eligible for retirement under the pension fund of said city, if any, is insufficient to effect the reduction in number desired by said city, or if there is no eligible person for retirement, or if no pension fund exists in said city, then the reduction shall be effected by suspending the last man or men, including probationers, that have been appointed. Such removal shall be accomplished by suspending in numerical order, commencing with the last man appointed, all recent appointees until such reduction shall have been accomplished. Whenever such fire department or fire alarm operators or fire box inspectors in the bureau of electricity shall again be increased in numbers to the strength existing prior to such reduction of members, or if any vacancies occur, the employees suspended under the terms of this act shall be reinstated to their former class before any new appointees are appointed.

Notwithstanding the specific provisions of Section 11 of the Act, the Appellants intentionally disregarded the statutory language because in their judgment*fn1 (1) the statutory procedure conflicts with the federal Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C.A. § 621 et seq., and therefore violates the supremacy clause of article VI of the United States Constitution and (2) the statutory procedure is inconsistent with Section 5 of the ...


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