190 A. 403 | Pa. Super. Ct. | 1937
Argued October 6, 1937. Clyde Lisk, the relator, filed a petition for a mandamus against the mayor, controller and clerk of the City of Scranton to compel the issuance and signing of a warrant for salary alleged to be due him as city fireman for the months of March and April 1934. An answer was filed by the city, a hearing was held and a decree nisi entered in favor of the defendant and against the plaintiff. Exceptions to the decree were dismissed and the decree nisi made absolute, from which decree the relator has appealed.
On February 1, 1930 Lisk applied to the Civil Service Commission of the city for an examination for a position of fireman. He stated in his application, under oath, that his height was 5 feet 7 inches, and he admitted at the hearing that he knew at the time he signed the application he was not 5 feet 7 inches. The relator was examined by a physician on February 27, 1930, and he certified relator's height as being 5 feet 5 inches. On April 7, 1930 he took the mental examination and was placed on the eligible list.
On December 1, 1933 relator was sworn in as a fireman — his name being selected from the eligible list — by the director of public safety, who had previously been the secretary of the Civil Service Commission. A new administration went into office on January 1, 1934. On February 27, 1934, the then director of public safety was notified by the Civil Service Commission that an examination of the records in the office showed that certain persons, appointed to the bureau of fire on or since December 1, 1933, were not entitled to certification for appointment under the rules and *138 regulations of the commission and that among the ineligibles for appointment was Clyde Lisk, for the reason that the records show that his height is given as 5 feet 5 inches, whereas the rules of the commission require a minimum height of 5 feet 7 inches for firemen. On February 28, 1934 relator received a letter from the director of public safety informing him he was dismissed because his probationary period was unsatisfactory and he was under the required height.
By virtue of the Act of March 9, 1927, P.L. 18, the City of Scranton became a city of the second class A, but, until otherwise provided, was to be governed by the laws relating to cities of the second class. The Act of March 7, 1901, P.L. 20, under the chapter entitled "Department of Public Safety," article 3, section 1, provided for the appointment of firemen and policemen in cities of the second class, and the procedure whereby appointees could be dismissed. By the Act of April 14, 1931, P.L. 38, relating to cities of the second class A, a similar procedure was enacted for the removal or dismissal of policemen and firemen, and it further specifically repealed the procedure fixed by the Act of 1901.
Section 8 of the Act of May 23, 1907, P.L. 206-210, relating to cities of the second class, provides: "The Civil Service Commission, in each city of the second class, shall make rules and regulations providing for examinations for positions in the classified service of each city, and for appointments to and promotions therein, and for such other matters as are necessary to carry out the purposes of this act. Due notice of the contents of such rules and regulations and of any modifications thereof shall be given, by mail, in due season, to appointing officers and heads of departments affected thereby; and said rules and regulations and modifications thereof shall also be printed for public distribution. All original appointments to the competitive *139 and non-competitive classes of the service shall be for a probationary period of three months: Provided, however, That at any time during the probationary period the appointee may be dismissed for just cause, in the manner provided in section twenty. If at the close of this probationary term, the conduct or capacity of the probationer has not been satisfactory to the appointing officer, the probationer shall be notified, in writing, that he will not receive absolute appointment, whereupon his employment shall cease; otherwise, his retention in the service shall be equivalent to his final appointment." Section 14 requires that appointments shall be made from the appropriate eligible list certified by the commission, and further that "when an appointment is made under the provisions of this section, it shall be, in the first instance, for the probationary period of three months, as provided in section eight of this act." Section 20, which relates to the removal of those in the competitive or non-competitive class, provides inter alia: ". . . . . . Further, no such officer, clerk or employe shall be removed, discharged, or reduced, except as provided in section eight of this act, until he shall have been furnished with a written statement of the reasons for such action, and been allowed to give the removing officer such written answer as the person sought to be removed may desire. . . . . . Nothing in this act shall alter the procedure required for the removal or punishment of policemen and firemen, as provided in the act of March seventh, one thousand nine hundred and one, relating to the government of cities of the second class."
Sections 8 and 20 are re-enactments of the same sections of the Act of March 5, 1906, P.L. 83 relating to cities of the first class.
The Act of 1901, supra, relates solely to policemen and firemen, while the Act of 1907, supra, provides a complete system for the appointment and dismissal of *140
all employees of cities of the second class, except as to dismissal or removal of policemen and firemen, the procedure for which was regulated by the Act of 1901: Doverspike v. Magee,
In the cases of Doverspike v. Magee, supra; Storm v. City ofScranton,
Decree affirmed.