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FAE FORMAN v. MAYOR WILLIAM J. GREEN (02/25/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 25, 1983.

FAE FORMAN, APPELLANT
v.
MAYOR WILLIAM J. GREEN, MAYOR OF CITY OF PHILADELPHIA ET AL., APPELLEES

Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Fae Forman v. Mayor William J. Green, Mayor of the City of Philadelphia, and City of Philadelphia, No. 877 May Term, 1980.

COUNSEL

Michael N. Silver, with him Thomas F. McDevitt, for appellant.

Joseph A. Cash, Jr., Assistant City Solicitor, with him Arlene F. Bell, Chief Assistant City Solicitor, and Alan J. Davis, City Solicitor, for appellees.

Judges Blatt, Craig and Doyle, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 72 Pa. Commw. Page 316]

Fae Forman, a former employee of the City of Philadelphia, appeals an order of the Court of Common Pleas of Philadelphia County, which sustained the city's preliminary objections and dismissed Forman's complaint in equity.

In her complaint, Forman alleged that:

[H]er termination as a city employee was due strictly to the aforementioned change of political administration within the City of Philadelphia [the replacement of the administration of Mayor Frank L. Rizzo with the administration of Mayor William J. Green] and, therefore, is a violation of her Constitutional and legal rights, including but not limited to her rights to due process under the First and Fourteenth Amendments.*fn1

Forman relies on Elrod v. Burns, 427 U.S. 347 (1976) and Branti v. Finkel, 445 U.S. 507 (1980) to support her position. Those decisions "protect public employees if they can show that a change of status, such as discharge, was due solely to the employee's political affiliation."*fn2 Miller v. Department of Transportation, 59 Pa. Commonwealth Ct. 446, 447, 429 A.2d 1278, 1278 (1981).

[ 72 Pa. Commw. Page 317]

The common pleas court held that Elrod and Branti were inapplicable to the present situation because, unlike those cases where the discharge resulted from inter-party politics, the change in administration here involved only members of the same political party.

However, we need not consider whether Elrod and Branti apply to dismissals involving different factions of the same party,*fn3 because Forman, in her complaint, has not alleged why the change in administrations resulted in her dismissal; there is no pleading that her political allegiance or beliefs were a factor -- no claim as to retribution, patronage or like matters being involved. "As a minimum, a pleader must set forth concisely the facts upon which his cause of action is based." Line Lexington Lumber & Millwork Co., Inc. v. Pennsylvania Publishing Corp., 451 Pa. 154, 162,

[ 72 Pa. Commw. Page 318301]

A.2d 684, 688 (1973). Furthermore, we cannot infer such matters to preserve the complaint. Pike City Hotels Corp. v. Kiefer, 262 Pa. Superior Ct. 126, 396 A.2d 677 (1978).

Accordingly, we affirm the order of the court of common pleas, but with leave to amend the complaint.

Order

Now, February 25, 1983, the order of the Court of Common Pleas of Philadelphia County, Civil Division, entered October 10, 1980 at No. 877, May Term, 1980, is hereby affirmed, but with leave granted to amend by filing an amended complaint with the trial court within twenty (20) days of the date of this order. Jurisdiction relinquished.

Disposition

Affirmed. Plaintiff granted leave to file amended complaint.


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