filed: April 3, 1980.
DANIEL HUNTER, APPELLANT,
PORT AUTHORITY OF ALLEGHENY COUNTY
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.
[ 277 Pa. Super. Page 6]
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
[ 277 Pa. Super. Page 7]
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
[ 277 Pa. Super. Page 8]
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 misconduct violates federal law unless the ban is rationally related to a
[ 277 Pa. Super. Page 9]
legitimate governmental objective. See, e. g., Thompson v. Gallagher, 489 F.2d 443 (5th Cir. 1973) (municipal ordinance barring employment as custodian of person who had been discharged from army under other than honorable circumstances violates due process and equal protection clauses of the fourteenth amendment); Smith v. Fussenich, 440 F.Supp. 1077 (D.Conn.1977) (three judge court) (statute barring felony offenders from employment by licensed detective and security guard agencies violates equal protection clause); Osterman v. Paulk, 387 F.Supp. 669 (S.D.Fla.1974) (prohibition of the employment as city office clerks of persons who had used marijuana within past six months violates equal protection clause); Butts v. Nichols, 381 F.Supp. 573 (S.D.Iowa 1974) (three judge court) (statute prohibiting the employment of convicted felons in civil service positions violates equal protection clause); cf. Green v. Missouri Pacific Railroad Co., 523 F.2d 1290 (8th Cir. 1975) (employer's absolute policy of refusing consideration for employment to any person convicted of a crime other than a minor traffic offense violates the federal civil rights act because policy has discriminatory impact upon minorities and is not justified by business necessity). But see New York City Transit Authority v. Beazer, 440 U.S. 568, 99 S.Ct. 1355, 59 L.Ed.2d 587 (1979) (refusal of transit system to employ persons who use methadone does not violate federal civil rights act or equal protection clause).
Moreover, last year our Legislature enacted the Criminal History Record Information Act, Act of July 16, 1979, P.L. 116, No. 47, 18 Pa.C.S.A. §§ 9101 et seq. (effective January 1, 1980), which limits the use of criminal records by employers when making employment decisions. In part, the Act provides:
Convictions for felonies, as well as misdemeanor convictions and arrests for offenses, which relate to the applicant's suitability for employment in the position for which he has applied may be considered by the employer. Misdemeanor convictions and arrests for offenses which do not relate to the applicant's suitability for employment in the position for which he has applied shall not be considered by the employer.
[ 277 Pa. Super. Page 1018]
Pa.C.S.A. § 9125 (1979 Pa.Legis.Serv. at 110).
Furthermore, our Supreme Court has not hesitated to limit unwarranted governmental restrictions upon an individual's right to engage in lawful employment on account of the individual's past criminal record. In Secretary of Revenue v. John's Vending Corp., 453 Pa. 488, 309 A.2d 358 (1973), the Court held that a corporation's wholesale cigarette dealer's license could not be lawfully revoked because the corporation's majority stockholder had been convicted of criminal offenses almost twenty years earlier. The Court noted that "every citizen has an inalienable right to engage in lawful employment. While a state may regulate a business which affects the public health, safety and welfare, it may not, through regulation, deprive an individual of his right to conduct a lawful business unless it can be shown that such deprivation is reasonably related to the state interest sought to be protected." 453 Pa. at 492, 309 A.2d at 361. The Court agreed that it was reasonable for the Department of Revenue to consider the character of persons being licensed to perform the duties of cigarette licensees, specifically with regard to integrity and honesty. The Court believed, however, that no material relevance existed between the past derelictions of the corporation's stockholder and either his or the corporation's present ability to perform the duties required by the position. The Court was especially mindful
of the deeply ingrained public policy of this State to avoid unwarranted stigmatization of and unreasonable restrictions upon former offenders. This State in recent years has been unalterably committed to rehabilitation of those persons who have been convicted of criminal offenses. To foreclose a permissible means of gainful employment because of an improvident act in the distant past completely loses sight of any concept of forgiveness for prior errant behavior and adds yet another stumbling block along the difficult road of rehabilitation.
453 Pa. at 494, 309 A.2d at 362.
The Court therefore concluded:
Under the facts such as those presented in this appeal, where the prior convictions do not in any way reflect upon
[ 277 Pa. Super. Page 11]
appellant's present ability to properly discharge the responsibilities required by the position, we hold that the convictions cannot provide a basis for the revocation of a wholesaler's license.
453 Pa. at 495, 309 A.2d at 362.
See also Unemployment Bd. of Review v. Dixon, 27 Pa. Commw. 8, 365 A.2d 668 (1976) (former employee may not be denied employment compensation for failing to inform employer at time of hiring of prior arrest record where the arrest record did not relate to a matter material to the employment sought).
Article I, section 1, of the Pennsylvania Constitution provides:
All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.
Appellant argues that this provision guarantees him the right to be fairly considered for public employment, and that this guarantee was violated when the Port Authority refused to hire him as a bus driver because of a thirteen year old misdemeanor conviction for which he had been pardoned. He also argues that the Port Authority's refusal to employ him solely because of this conviction constitutes a denial of "the full effect of the pardon and decreases [his] liberty without affording substantive or procedural due process."
Although we have found no case in this Commonwealth directly on point, we have no trouble concluding that when a person is denied public employment on the basis of a prior conviction for which he has been pardoned, unless the conviction is reasonably related to the person's fitness to perform the job sought, or to some other legitimate governmental objective, article I, section 1, is violated. The Supreme Court has consistently interpreted article I, section 1, as guaranteeing an individual's right to engage in any of the common occupations of life. See, e. g., Adler v. Montefiore Hospital Ass'n of W. Pa., 453 Pa. 60, 311 A.2d 634 (1973),
[ 277 Pa. Super. Page 12]
Because a cause of action may arise under article I, section 1, if a person is denied public employment because of a prior conviction, it is clear that the lower court erred in dismissing appellant's complaint upon the Port Authority's demurrer.*fn6
"The standards for sustaining preliminary objections in the nature of a demurrer are quite strict. A demurrer admits every well-pleaded material fact set forth in the pleadings to which it is addressed as well as all inferences reasonably deducible therefrom, but not conclusions of law." Gekas v. Shapp, 469 Pa. 1, 5, 364 A.2d 691, 693 (1976) (collecting cases). "In order to sustain the demurrer, it is essential that the plaintiff's complaint indicate on its face that his claim cannot be sustained, and the law will not permit recovery. . . . If there is any doubt, this should
[ 277 Pa. Super. Page 15]
be resolved in favor of overruling the demurrer." 469 Pa. at 5-6, 364 A.2d at 693. See also Schott v. Westinghouse Electric Corp., 436 Pa. 279, 259 A.2d 443 (1969); King v. United Steel Corp., 432 Pa. 140, 247 A.2d 563 (1968).
In sustaining the Port Authority's demurrer, the lower court violated these established principles in two respects. First, the court misread the complaint when it stated: "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." The complaint did not allege that appellant failed to disclose his prior conviction to the Port Authority; the complaint specifically alleged that he did inform the Port Authority of the conviction. The gravamen of the complaint is that the Port Authority refused to hire appellant because of this information. Second, the lower court erred by considering factual matters not averred in the complaint. See Muia v. Fazzini, 416 Pa. 377, 378, 205 A.2d 856, 857 (1965) (per curiam) (in ruling on a demurrer to a complaint, a court may not "consider factual matters neither averred in the complaint nor disclosed in any other part of the record"). The lower court stated: "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." The reasonableness of a refusal to employ appellant as a bus driver because of a single conviction that occurred thirteen years before and arose out of a domestic dispute, and for which he was subsequently pardoned by the Governor, cannot be subject to judicial notice. As an initial matter, the lower court did not know (because the complaint did not disclose) the reasons that prompted the Governor to grant the pardon. It might have been granted because appellant was innocent but erroneously convicted, or because mitigating circumstances existed at the time of the offense, or because appellant's rehabilitation subsequent to the offense warranted a pardon. Beyond the
[ 277 Pa. Super. Page 16]
circumstances surrounding the Governor's pardon, the lower court could not assess, on the basis of the averments in the complaint, the relationship, if any, between the assault thirteen years prior to appellant's employment application and appellant's present ability to perform the duties of a bus driver. Even if the lower court could have taken notice that a bus driver is "often under stressful and anger-provoking situations," the court could not have determined that the Port Authority had reason to believe that appellant would be unable to respond to stressful situations appropriately. In addition, the lower court could not have known whether other governmental objectives-such as administrative efficiency and economy-were present and sufficiently compelling to justify an absolute exclusion by the Port Authority of all applicants for bus driving positions who had ever been convicted of aggravated assault and battery.
The Port Authority argues that appellant's complaint is deficient because it does not allege that its hiring standards are arbitrary or unreasonable, or that the Port Authority has a general policy excluding the hiring of persons with convictions. While appellant's pleading would have been better had he alleged that the Port Authority's refusal to employ him as a bus driver was without reasonable relation to any legitimate governmental objective, his failure to plead this does not amount to a fatal defect in the complaint. Appellant averred that he was denied employment as a bus driver by the Port Authority because of a thirteen year old assault conviction, that he had been pardoned for the offense, that he was in all respects suitable and qualified for employment as a bus driver, and that the Port Authority's refusal violated his rights under article I, section 1. These averments sufficiently pleaded a cause of action.
We also reject the Port Authority's argument that appellant's rights under article I, section 1, turn upon whether the Port Authority has a general policy excluding the hiring of persons with assault convictions. Appellant has the right
[ 277 Pa. Super. Page 17]
under article I, section 1, to be free of arbitrary governmental action. The government may be arbitrary with or without a general policy.
In finding that appellant has stated a cause of action under article I, section 1, we wish to stress again what is repeated throughout this opinion. Public employers are not always precluded from considering a job applicant's prior convictions in making hiring decisions. In some instances, the fact of a prior conviction, even though pardoned, will be extremely relevant, perhaps conclusive, on an individual's fitness for a particular job. For example, an absolute bar against the employ of convicted arsonists as firemen would probably present no constitutional problems. See Carlyle v. Sitterson, 438 F.Supp. 956 (D.N.C.1975). Similarly, a bar against the employment of convicted felons as police officers would probably be reasonable since "a person who has committed a felony may be thought to lack the qualities of self-control or honesty that this sensitive job requires." See Upshaw v. McNamara, 435 F.2d 1188, 1190 (1st Cir. 1970); see also DeVeau v. Braisted, 363 U.S. 144, 80 S.Ct. 1146, 4 L.Ed.2d 1109 (1960) (disqualification of ex-felon from waterfront union offices unless he is subsequently pardoned or received certificate of good conduct from parole board does not violate federal constitution). We hold, however, that when a public employer denies employment to an individual because of his criminal record, the employer's denial of employment must be reasonably related to the furtherance of a legitimate public objective. Here, the reasonableness of the Port Authority's refusal to hire appellant is not apparent on the face of the complaint. The Port Authority's demurrer should therefore not have been sustained.