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WALTER LINN BROOKMAN AND DANIEL E. MORRIS v. MICHAEL JOHNS (09/13/79)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: September 13, 1979.

WALTER LINN BROOKMAN AND DANIEL E. MORRIS, FOR THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, APPELLANTS
v.
MICHAEL JOHNS, SUZANNE GOMEZ AND LEO TRICH, APPELLEES

Appeal from the Order of the Court of Common Pleas of Washington County in case of Walter Linn Brookman and Daniel E. Morris, for themselves and all others similarly situated v. Michael Johns, Suzanne Gomez and Leo Trisch, No. 7380, Bk. 43, Pg. 273.

COUNSEL

Regis J. McNally, for appellants.

William A. Mitchell, with him Hanna, Mitchell & Mitchell, for appellees.

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

Author: Mencer

[ 45 Pa. Commw. Page 630]

This appeal presents to us a single issue which can be succinctly stated: Can a third class city reduce the number of firemen for economy reasons without enacting an ordinance to provide for such reduction?

On March 13, 1978, the Washington City Council voted to lay off, for economy reasons, three men within the fire department, and, on March 27, 1978, the employment of three firemen was terminated. There is no disagreement that these three firemen are the proper persons whose employment would be terminated if Section 11 of the Act of May 31, 1933, P.L. 1108, as amended (Firemen's Civil Service Act), 53 P.S. § 39871,*fn1 is applicable. The Firemen's Civil Service

[ 45 Pa. Commw. Page 631]

Act establishes the exclusive procedure*fn2 when a reduction in the number of personnel in the city fire department is contemplated. See Genes v. City of Duquesne, 27 Pa. Commonwealth Ct. 620, 367 A.2d 327 (1976).

However, the appellants here, members of the Washington City Fire Department, contend that the ordinance requirement set forth in Section 902 of The Third Class City Code, Act of June 23, 1931, P.L. 932, as amended, 53 P.S. § 35902,*fn3 is to be read in pari

[ 45 Pa. Commw. Page 632]

    materia with Section 11 of the Firemen's Civil Service Act. We have studied the two acts in question and must conclude, as did the Court of Common Pleas of Washington County, that the Firemen's Civil Service Act removed firemen from the provisions of The Third Class City Code and established a separate civil service system for firemen.

Section 11 of the Firemen's Civil Service Act permits reduction of firemen for reasons of economy and sets forth a procedure to follow. We are of the view that the reduction of fire personnel in a third class city is governed exclusively by Section 11, which need not be read in pari materia with Section 902 of The Third Class City Code and does not stand in need of the passage of an ordinance.

Since the appellees here complied with the requirements of Section 11 of the Firemen's Civil Service Act, the court below properly sustained preliminary objections in the nature of a demurrer and dismissed appellants' complaint in equity.

Order affirmed.

Order

And Now, this 13th day of September, 1979, the order of the Court of Common Pleas of Washington County, dated April 4, 1978, sustaining the preliminary objections of Michael Johns, Suzanne Gomez, and Leo Trisch,*fn4 in the nature of a demurrer, and dismissing the complaint in equity of Walter Linn Brookman and Daniel E. Morris, for themselves and all others similarly situated, is hereby affirmed.

Disposition

Affirmed.


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