48 A.2d 162 | Pa. Super. Ct. | 1946
Argued March 12, 1946. In 1911, Oborn Cain was appointed to the police force of Upper Darby Township with duties of a patrolman at a fixed salary of $114 per month. He was paid at this rate by the township until July 21, 1944, when further payments were refused because of notice to the township commissioners of a decision of the Civil Service Commission "that he be honorably discharged from the Police Department of the Township" as of that date. *468 Cain thereupon petitioned for mandamus to compel the township commissioners to restore him to the status of a regular member of the police force without interruption of pay. The writ issued in alternative form. After defendants' motion to quash was refused they answered the writ by filing a joint return. The case came before the lower court on Cain's demurrer to the return. Cain died in the meantime and his administratrix was substituted as plaintiff in the action. The lower court in its final order adjudged the action abated by his death. Plaintiff contends that the cause of action did not wholly abate; that the order of the Civil Service Commission is a nullity because the commission did not have jurisdiction of the complaint and therefore his estate is entitled to judgment for the amount of unpaid salary from July 21, 1944, to August 10, 1945, the date of his death.
These additional facts, averred in the return, are admitted(Salak v. St. Mary's G.C. Ch. Soc.,
We are not convinced that the cause of action, in this case, wholly abated by Cain's death. The Act of June 8, 1893, P.L. 345, § 16, 12 PS 1919, allows a recovery for damages, in mandamus, as in actions at law. Kell v. Rudy,
Plaintiffs rights are determined by the Act of June 5, 1941, P.L. 84 which furnishes "a complete and exclusive system for the appointment, promotion, reduction, suspension or removal of members of the police force in every . . . township of the first class . . ." § 26, 53 PS 351.26. Defendant township is of that class with a Civil Service Commission appointed in accordance with the act. The statute prescribes the procedure to be followed in dismissing a police officer from the service of the township. Here we may assume that the statutory procedure was followed except in the one respect disclosed by the record. Section 21 of the Act, 53 PS 351.21 contemplates a hearing by the Civil Service Commission "if the person sought to be suspended, removed or reduced in rank . . . shall demand a hearing by the commission." The mere fact however that the hearing in this case was not demanded by Cain does not oust the jurisdiction of the commission. The commission was created to maintain standards of efficiency in the police service of boroughs, towns, and townships of the first class. Its jurisdiction is exclusive in determining the qualifications and fitness of a police officer both before appointment under the act and, if the issue is contested, whether cause exists for his discharge. Section 20 of the Act, 53 PS 351.20, defines the grounds for removal of a policeman, among them: "physical or mental disability affecting his ability to continue in service, in which case the person shall receive an honorable discharge from service". The written notice served on Cain informed him of the charge against him in the language of the act.
When Cain appeared, in accordance with the notice accompanying the complaint, he submitted to the jurisdiction *471
of the Civil Service Commission to determine his status on the issue of his disqualification. He, by his voluntary appearance, must be regarded as having waived strict compliance with the statutory procedure. Since the commission had jurisdiction of the subject matter of the complaint the result is the same as though the hearing had been demanded by him. It is not unfamiliar practice in the common pleas for the parties to waive the issue of summons or other procedural requirement and submit to the court any issue within its jurisdiction. The waiver may be by agreement or by general appearance. And an objection to the jurisdiction of a court which goes, not to its judicial power, but to the mode in which the case is brought before it, will not avail, after a general appearance and plea in bar. Schenley v.The Commonwealth for the City of Allegheny,
These principles apply to the proceeding before the Civil Service Commission. The commission had jurisdiction of the subject matter and of Cain by his appearance; its decision therefore was binding both on him and upon the township commissioners. It is not fatal to the *472
defense that the township commissioners did not honorably discharge Cain "from service", by formal resolution following the decision of the commission. They did recognize the binding effect of the order by stopping the payment of his salary as directed.Bragdon v. Ries,
Cain did not appeal to the common pleas within 60 days from the date of the commission's order, as he might have done, under § 21 of the Act, 53 PS 351.21. In the absence of an appeal, the order of the Civil Service Commission became a final adjudication of Cain's status, barring recovery in this case. Cf. White v. OldYork Rd. Club,
Judgment entered for defendants.