17 Pa. Commw. 194 | Pa. Commw. Ct. | 1975
Opinion by
This appeal involves an action in mandamus by twelve firemen seeking reinstatement to the Bureau of Fire of the City of Scranton after having been discharged therefrom because of insufficient funds. Upon an agreed set of facts, the Court of Common Pleas of Lackawanna County refused reinstatement and the firemen appealed to this Court.
The firemen here concerned were all notified individually by letters dated January 14, 1972 from the Director of Public Safety and the Chief of the Bureau of Fire (appellees) that “[b]ecause of the lack of funds appropriated
The lower court, in upholding the dismissals, relied upon the Act of June 27, 1939, P.L. 1207, 53 P.S. §23497, which provides that where economically necessary the total number of fire bureau employees may be reduced in cities of the Second Class by retirement of those employees eligible for retirement under the terms of the local firemen’s pension fund ordinance.
This Court has held recently, in a case almost identical to the one at hand, that a similar statute relating to police department employee reduction for cities of the Second Class
Similarly, we must order the reinstatement of the firemen who are the appellants here. Their dismissals were also illegal under that correctly applicable statutory law.
The appellees, of course, have asked us to reconsider our Wolkoff decision, and we have carefully reviewed it again.
We must once more conclude, however, that the principles established therein are correct and we believe that they apply equally as well in the case at hand.
The applicable-legislation here limits the dismissal of firemen employed in a city of the Second Class A by providing that “no regularly appointed policeman or fireman . . . shall be removed or dismissed without his written consent, except by decisions of court, either of trial or inquiry . . . .” Act of April 14, 1931, P.L. 38, as amended, 53 P.S. §30471. Written consent is clearly missing here, and a court of trial or inquiry may not be activated under the statute except upon charges of disability for service, neglect, violation of law or duty, inefficiency, intemperance, disobedience of orders, unbecoming official or personal conduct, or intoxication while on duty. Act of April 14, 1931, P.L. 38, as amended, 53 P.S. §30472. No such charges were made here, either. The appellants, therefore, neither having consented to dismissal nor having been charged before a court of trial or inquiry, were improperly dismissed.
The appellees cite authority which we feel compelled to distinguish. Leary v. Philadelphia, 314 Pa. 458, 172 A. 459 (1934), and Essinger v. New Castle, 275 Pa. 408, 119 A. 479 (1923), were cases involving policemen and firemen dismissals respectively, and they make clear the proposition that: “Civil service acts are designed to
We recognize, of course, the somewhat anomalous situation which results. The legislature has seen fit to provide for employee reduction procedures where economically necessary in cities of the Second Class.
. The Act of August 10, 1951, P.L. 1189, 53 P.S. §23539.
. Act of June 27, 1939, P.L. 1207, 53 P.S. §23497, pertaining to fire bureau employees; Act of June 20, 1947, P.L. 663, amending the Act of May 23, 1907, P.L. 206, 53 P.S. §23454, pertaining to city employees generally; and the Act of August 10, 1951, P.L. 1189, 53 P.S. §23539, pertaining to police bureau employees.
. Act of June 23, 1931, P.L. 932, as amended, 53 P.S. §39408,,