12 Pa. Commw. 26 | Pa. Commw. Ct. | 1974
Opinion by
This action in mandamus was brought by appellee on February 9, 1968, to have the court order appellants to certify him as a permanent employee on the Civil Service rolls as a patrolman in the City of Pittsburgh, Bureau of Police, effective September 5, 1966, or, in the alternative that he be given a hearing according to the administrative procedure mandated by the Civil Service Law and the practices of the Pittsburgh Bureau of Police.
On June 6, 1966, after satisfactorily completing the pi*eliminary requirements, appellee was sworn in as a police officer in the City of Pittsburgh and began his three months’ probationary period. On September 6, 1966, by being handed a letter dated September 5, 1966, appellee was informed by the then Director of Public Safety of the City of Pittsburgh that his conduct had
On September 21 or 22, 1966, appellee had a conference with the then Director of Public Safety, protesting his termination and was told that the Director would look into the matter. On January 19, 1967, appellee had another appointment with the Director and was told that the Director would make a new investigation. On July 20, 1967, the Director wrote the Civil Service Commission and recommended appellee be reinstated as a police officer in the Bureau of Police. He stated his reasons for the recommendation as follows: “He was appointed on June 6, 1966 and was not certified for permanent appointment at the end of his probationary period. Subsequent investigation satisfies me that his performance during the probationary period was satisfactory. For that reason I recommend his reinstatement.”
It is stipulated by the parties that appellee’s employment as a police officer was not terminated as a result of any political, racial or religious reasons, or any other discrimination encompassed by the statute.
By letter dated January .19, 1968, the Civil Service Commission notified appellee that it would not honor the recommendation for reinstatement. Appellee requested a hearing and, by letter dated January 31, 1968, the Commission informed appellee he was not entitled to a hearing. This action in mandamus followed on February 9, 1968.
The lower court quite accurately stated the question here presented to be a very narrow one. It stated the question to be: “The critical matter for our determination is whether the Director of Public Safety possessed the power and authority to reinstate the Plaintiff some ten months following the end of his probationary period.” The lower court answered this question in the affirmative and ordered reinstatement as of the date of
It is appropriate to point out that all parties agree that this is not a proper case for reinstatement as that term is used in Section 4 of the Act of August 10, 1951, P. L. 1189, 53 P.S. §23533. As noted by appellee, that procedure presupposes a previous legal separation. As presented by appellants, that procedure necessarily involves the exercising of discretionary power by the Commission. Admittedly, mandamus would not be an appropriate procedure if the Commission is vested with discretionary power as it would be under that section.
Section 8 of the Act of May 23, 1907, P. L. 206, 53 P.S. §23440,
The Pennsylvania Supreme Court has ruled squarely that the appointing officer’s decision as to whether
That this continues to be the law in Pennsylvania is clear from Hunter v. Jones, 417 Pa. 372, 207 A. 2d 784 (1965), wherein the court had before it a mandamus action filed by probationers who were terminated by being notified that their work was unsatisfactory. The terminated employees alleged that their termination resulted from unlawful discrimination and demanded a hearing before the Commission. Justice Roberts, speaking for a unanimous court, said that while there was no appeal on the question of whether the work was satisfactory, there could be a hearing as to whether there had been unlawful discrimination as alleged. That is not this case. Quite the contrary. Any improper motive for termination such as political, racial or religious reasons is expressly eliminated by the stipulation in this case. See also Commonwealth ex rel. Lisk v. Davis, 126 Pa. Superior Ct. 136, 190 A. 403 (1937).
The court below held that the appointing authority could reconsider his decision but adopted a “middle-ground position,” holding that the probationer would be reinstated as of the time of the reconsidered decision. This “middle-ground position” is not supported by any of the litigants.
The lower court relied on Wood v. Griffith, 66 Pa. Superior Ct. 290 (1917), as authority for its action. In that case, the court approved the action of the Civil Service Commission accepting the recommendation of the appointing authority, made within three weeks of the original decision, that it could correct his error. Not only is that not this case, indeed, the Superior Court there stated that the appointing authority’s decision could be corrected “if promptly presented for review before the proper tribunal.” Certainly ten months to reconsider a decision based on three months’ performance could not be characterized as promptly.
Any reliance placed by the court below on Goldberg v. Philadelphia, 279 Pa, 356, 123 A. 851 (1924), is misplaced. In that case, the Civil Service Commission had dismissed an employee, but after trial, modified its order to a suspension based on after-acquired evidence. The court found that the Commission had acted within its delegated powers.
Even in those instances where the decision of the appointing authority is subject to challenge by those adversely affected, formal action must be taken promptly by those who would challenge the decision. In this case, appellee never took any formal action. If the appointing authority can sua sponte “correct” its discre
The decision of the court below is reversed and the plaintiff’s requests in his amended complaint in mandamus are denied, and the amended complaint is dismissed.
A question might have been raised as to whether this Act is applicable. Counsel Cor appellant and counsel for appellee agree that it is. An opinion of the former City Solicitor, later Judge of the Third Circuit Court of Appeals, Hon. David Stahl, dated August 31, 1966, addressed to the Secretary of the Civil Service Commission of the City of Pittsburgh, with a copy to the Director of Public Safety who handled this case, advised that it is. The lower court so staled. It was not raised before this Court.