No. 920 April Term 1978, Appeal from the Order in the Court of Common Pleas of Allegheny County, Civil Div., Equity, No. GD 77-26657.
Daniel P. McDyer, Pittsburgh, for appellant.
Russell W. Ayres, III, Pittsburgh, for appellee.
Van der Voort, Spaeth and Montgomery, JJ. Van der Voort, J., concurs in the result.
This appeal arises from an order dismissing a complaint for failure to state a cause of action upon which relief may be granted.
On November 14, 1977, appellant filed a complaint in equity in the Court of Common Pleas of Allegheny County containing the following allegations. In October 1976, appellant applied for employment as a bus driver with the Port Authority of Allegheny County. He was interviewed and tested by employees of the Port Authority's personnel division, and in July 1977, was informed that he could begin training as a bus driver in October 1977. On September 8, 1977, the Port Authority informed appellant that he would not be trained as a bus driver because he falsified his employment application. In filling out the application, appellant, unsure of the correct answer, did not respond to a question asking for information concerning appellant's past felony or misdemeanor convictions. Appellant, however, subsequently informed a personnel assistant of the Port Authority during an employment interview that in 1963 he had been convicted of an aggravated assault and battery that arose out of a domestic dispute and was sentenced to ninety days imprisonment. Appellant also told the personnel assistant that the Governor later unconditionally pardoned him for the offense. The complaint alleged that the Port Authority refused to employ him*fn1 because of this
pardoned conviction (and, by implication, not because of his failure to complete his employment application properly), and that this refusal allegedly violated appellant's rights under article I, sections 1 and 10, of the Pennsylvania Constitution. The complaint prayed for an injunction "restraining the [Port Authority] from refusing to admit [appellant] to its bus driver training class and refusing to employ [appellant]," and for "such other relief as [the] Court may deem appropriate."
On December 16, 1977, the Port Authority filed preliminary objections in the nature of a demurrer to the complaint. The demurrer alleged that as a matter of law the refusal of the Port Authority to employ appellant as a bus driver because of his failure to disclose his prior criminal conviction did not constitute a violation of article I, sections 1 and 10. The demurrer also alleged that appellant lacked standing to challenge the Port Authority's actions, and that the court in equity lacked jurisdiction because appellant's complaint failed to allege the inadequacy of remedies at law. On April 26, 1978, the lower court sustained the demurrer and dismissed the complaint. The lower court reasoned that "[a] refusal to hire because of a conviction for aggravated assault and battery is reasonable, given the fact that a bus driver is constantly dealing with the public, often under stressful and anger-provoking situations. Failure to disclose a material fact, such as the one in issue, is an element which may be considered, along with others, if any, factors in determining whether to enter into an employment contract. Furthermore, it may be noted that no person has a constitutional right to public employment. One merely has the right to be considered for a job on a fair and reasonable
basis." Slip op. of the lower court at 2-3.*fn2 This appeal followed.*fn3
The legitimacy of governmental bans*fn4 on the employment of ex-criminal offenders has, during the last decade, been the subject of considerable judicial and legislative concern. Federal courts have held that a ban prohibiting the employment of persons who have been guilty of past ...