*1 Appellant. Philadelphia, Gaul v. Appellant. Philadelphia, Jacobson v. Appellant. Philadelphia, Jennings v. *2 Before C. January J., 1956. Argued Steen, and Ar- Musmanno Stearns, Jones, Bell, Chidsey, JJ. nold, him City Solicitor, with Freedman, L.
Abraham City First Deputy Solicitor, L. Schwartz, Murray City Solicitor, ap- Wernieh, Deputy Abraham pellants. J. Henry him Morgan with H. Morgan,
Marshall Kozart, appellees. R. and Harry 1956: March Opinion Mr. Chidsey, Justice (cid:127) mandamus . actions three these In as de- joined its officers certain Philadelphia entered judgments the several from fendants, ¿ppeai the respec- reinstatement ordering pleadings on from City government to positions tive plaintiffs they which had been The dismissed. cases were argued together cоurt below which opinion rendered in one case (the Jennings which was made case) appli- cable to the others. The cases were similarly argued in this together Court and all of them will consid- ered and determined this opinion. Q-aul Appeal No. after (the case) prelimi- objections
nary filed defendants plaintiffs complaint were withdrawn, plain- tiff filed a motion for on the pleadings. case before court on was, therefore, complaint answer. After setting forth that was a for- mer county employe who had been his em- retained ployment after on adoption November 1951 of *3 the City-County Consolidation the Amendment, com- plaint alleged: “On April the continu- 30, 1952, during ance оf the said and employment before plaintiff had been afforded an opportunity pass to a qualifying test as provided by the Philadelphia Plome Rule Charter,1 the defendant, Joseph A. Clerk of Court of Scanlon, Quarter as without Sessions, just or aforesaid, proper and in cause provisions violation of the of the said Charter, unlawfully plaintiff from his discharged said employment and dismissed him from the service of the of City Philadelphia, thereby unlawfully him depriving of the right his under Charter to said be continued in the said employment and afforded the opportunity the said test.”. The passing an- qualifying defendants’ swer “. . . averred: Plaintiff was for just discharged and in the held proper cause, position plaintiff was eliminаted the process the de- reorganizing for reasons of economy and partment efficiency; and for the further did not plaintiff possess reason suf- and experience ficient to en- education, qualifications 1 Adopted April 1951,-effective January. 7, 17, as of 1952.
497 efficiently him to the duties properly perform able and position.”. to his pertaining
Where on summary judgment seeks must be ac- of the answer pleadings, allegations London Pa. 81 A. v. 368 cepted Kingsley, 109, true: A. 2d v. Pa. 80 870; 587, 2d Waldman Shoemaker, v. Moore et 362 Pa. al., Coal 776; Kittaning Company 66 A. the de- Therefore, allegation 2d 273. fendants’ that “. . Plaintiff discharged . was held position by plain- and just proper cause, reorganizing tiff was eliminated prоcess . . reasons department economy efficiency; be This being so, appellants must taken as admitted. to interposed pre- that a sufficient was contend defense on On entry pleadings. vent our deci- upon hand reliance placing other appellee, Pa. 111 A. Philadelphia, sion in v. Cornman notice op- 2d that he was entitled 121, contends mere heard dismissal, be before portunity of the abolish- because that he dismissed allegation that he averring further ment of his without heard, such notice and summary preventing insufficient to constitute a defense judgment. 371 Pa. held in v. Philadelphia,
We
Carrow
under
Charter a
the governmental power is vested. eliminate the .office a -non- plaintiff-was of his dismissal '(cid:127)..vAt the time civi,l status as tenure- whose /to employe. service him name- afforded Charter, only §A-104 in his until employment to continue the right ly, employe by a civil serviee to become the opportunity test. His status as tenure qualifying passing
499
patently
employes
inferior to that of
who
civil service
protection
pro
enjoyed, inter
of
civil service
alia,
hearing
visions as to
Cer
notice and
before dismissal.
tainly
right
employes
plaintiffs category
can
of
higher
rights
employes
rise no
than the
who have
repeatedly
attained civil service
and we have
status,
held that where an office held
a civil
em
service
ploye
hearing
is
no notice
need be
abolished,
Essinger
to the incumbent:
v. New
Pa.
275
Castle,
Leary
Philadelphia
119 A.
v.
et
314 Pa.
479;
al.,
Boyle
Philadelphia
172 A.
et al. v.
et
Pa.
459;
al.,
Essinger
12 A. 2d
In the
43.
case a fireman who
economy brought
was dismissed for reasons of
man
proceedings
compel
damus
on the
reinstatement
ground
applicable
that under
he
Civil Service Act
only
specified.
could be removed
after trial for causes
rejected
This Court
contention. Mr. Jus
speaking
tice
for the
stated: “Civil
Court,
Sadler,
designed
appointment
service acts are
to secure the
competent public
protect
them in their
servants,
employment
personal
long
grounds,
from attacks on
so
they
They
are well behaved.
are not
intended
re
public expense
tain
office at
those whose services
may
dispensed
eсonomy.
purpose
with for
'The
prohibiting
the civil service
and of other laws
statute,
discharge
employees
assigned,
without cause
no
hearing,
pub
and a
to insure the
tice,
continuance in
employment
prove
lic
of those officers
faithful
who
regardless
political
competent,
of their
affiliations.
These statutes are not intended to affect or control
power
city
or the executive officers
council,
they
city,
longer
abolish offices when
no
are
necessary,
economy. They
or for reasons of
are not in
tended to furnish an
to the officer or em
assurance
ployee
city
he will be retained
the service of
required. They
after thе time when his
are
do
services
*6
prevent
discharge
good
in
faith
a trial,
not
his
without
body abolished
without
the office or
is
and
when
notice,
economy’:
unnecessary,
2
or
of
Dillon
for reasons
Municipal Corp. (5th ed.)
of
In the absence
some
805.
provision
legislative
not
enactment,
constitutional
or
municipality
withstanding
the
Act,
the Civil Service
by
though
may
away
the
do
with an office created
it,
employee from his situa
effect
the removal of an
is
subject
previ
Though
of
tion: 5 R.
L.
not the
C.
614.
Pennsylvania,
been the uni
ous discussion in
this has
many
ruling
has
where consideration
form
states
City Bayonne,
question: Harker v.
of
been
to the
Washington
Counsel
applicable only
Essinger
the
clared
case is
requirement
legislative
here
and that
absence of some
prescribe
provisions
no-
of the Charter
the civil service
hearing
is a misinter-
before dismissal. This
tice
contrary
Essinger
pretation
is
to the
case and
opinion.
appear
It
tenor
Avould
whole
quoted
the sentence
the above
counsel misconstrues
excerpt
con-
therefrom that “. . .
the absence
some
provision
legislative
notwith-
or
enactment,
stitutional
municipality may
standing
the Civil Service Act,
though
away
created
the effect
it,
an office
do
Avith
employee from
his situation: . . .”.
is the removal
supplied).
It
clеar that
(Emphasis
this limitation
application
upon
rule
refers to some inhibi-
en-'
that contained
civil service
than
tion other
points to no such constitu-
relied on. Counsel
actment
provision
enactment.
tional
not
civil service
enjoy
Furthermore
did
appellee
protection
benefit and
not
status
within
All of
of the Charter.
of the civil service provisions
county employes
former
with
opinions dealing
our
it
provisions
make
clear that
civil service
are
thereunder
regulations promulgated
Charter and
they pass
the time
to them
applicable
prior
See
their
enter
civil service.
tests and
qualifying
Butcher v. Phila
Carrow and Cornman cases
And this is also
The court below seemed was not ap- ease Essinger the rule established abolishment of unless the plicable city of council. an ordinance by was accomplished 2 authority may XXI, “Lay-Offs. appointing Regulation The §3: change lay employe because of a material in the civil service off departmental organization lack of either or because of a in duties or notify authority appointing the Person shall work or The funds. and shall send a with reasons therefor nel Director of the action having copy employee affected. If certified as of such to the notice employee service, satisfactory laid off shall name of the re-employment appropriate placed list. If certified on the may employee having given satisfactory service, the laid off con as hearing discharge may requеst pro and as sider action lay-offs governed by regulations. order of shall be these The vided efficiency ratings (Empha by when available.”. a consideration of supplied). sis and no such
There is no such limitation Easinger It is of the rule is warranted. application narrow of office is abolished no whether the significance of the executive branch government. legislative serv- “. . . ‘These stated in the case: Essinger As [civil affect or control statutes are not intended ice] or the executive the city council, power officers of nec- are no they longer to abolish offices when city, ”. . . .’ economy (Emphasis or for reasons of essary, the elimination policy requirеs Public supplied). it no whom importance is of positions needless Philadelphia City abolish is vested. power change handling complete Charter effected a branch to the executive matters and personnel gave the over- the framework of freedom within complete required to the number all to establish budget positions at least them, pertaining and, and the compensation num- to reduce the the power by necessary implication, positions.3 ber of specifically provided: it is In Section 3-702 of the Charter departments the several boards . . the heads several “. and, compensation appoint such commissions shall fix chiefs, super secretaries, consultants, experts, division bureau or chiefs, superintendents, intendents, and other as assistant assistant *8 employees may required proper conduct he for the as sistants offices, departments, respective boards or com work of the of their meaning (Emphasis supplied). The and intention of this
missions.”. provision in the section which reads: is reflected the annotation to appointed compensation employees to be and their “The number of matter of decision for the administrative and executive made a are legislative branch, government. Ap branch, the of the rather than lump departments, propriations the will be made sums to various personnel agency for services. and commissions Each will boards many employees appointed are to be and what decide how their lump appropriation within the shall be sum to it. The salaries legislative power ap control to the extent of to retains its Council lump requested. propriate . .”. the sums Counsel for that the abolishment argues appellee ac- position a is a measure and should be permanent complished councilmanic action only which through on department would be not the then head binding only but where the upon his successors in whereas office, of a a his department head abolishes succes- position, sor office could restore it. But so could council. the Under Charter to eliminate power is to the executive officer. While exercise as to attack not made power open good power exists. To buttress this faith, argument again “Lay-Off” regulation (Foot- counsel refers to Com- the Civil Service by note 2, supra) promulgated mission Section 7-401 But as before (o). pursuant county employe a former was not stated, appellee service of the Charter. provisions the civil covered con- the appellee’s There remains consideration abolition of plaintiff’s to the tention that addition of his as the cause dis- City position assigned by as a cause that also alleged missal, exрerience education, . not sufficient possess “. . did and effi- enable him to properly qualifications to his position.”. pertaining the duties ciently perform proceeds upon assump- argument appellee’s Much of reason for his dismissal. only this tion in favor is much to said there premise this Based on for his immedi- it was not contention of appellee’s he upon qualifications, his to pass ate superior test qualifying pass under entitled §A-104 Director and approved by the Personnel prescribed .of However, quali- luck Commission: Service Civil plaintiff’s alleged cause only fications be- he was discharged averred It was disfaissál.” and this his aver- position, the abolishment cause mo- under аs admitted: be taken must ment That the.answer the pleadings. judgment-on tion *9 set up another cause or reason his dismissal insuf- ficient in law to a constitute defense does not destroy the efficacy of the cause for the alleged dismissal this raised an is- eliminated; sue of fact on requiring hearing namely, merits, was there a bona fide abolishment plaintiff’s posi- tion? No. Jacobson Appeal (the case) the plaintiff
filed a that he complaint alleging as employed children’s the office of the agent county commission- ers prior to the Consolidation Amendment City-County on adopted continuously November 1951 and was employed this dur- position; April “On ing the continuance of the employment said and before plaintiff had been afforded an opportunity to pass as qualifying provided test Home Philadelphia Rule Charter Thomas A-104], defendants, [Section P. Maurice S. Osser and Walter I. McPIenry, Davidson, without Commissioners, just prop- aforesaid, er cause in violation of the of the said provisions unlawfully from his Charter, discharged plaintiff said employment and dismissed him from the service of the City of him .Philadelphia, thereby unlawfully depriving of his under the' right said Charter to be continued the said and afforded the employment the said passing test.”. As qualifying case, Gaul the plaintiff that he be prayed to his position restored and be paid his damages. defendants’ averred.that “.-. . just and dismissed (cid:127) in that his proper сause were employers compelled in', reduce .the number .employees the-office County’Commissioners-'for purpose economy in; efficiency| .plaintiff.: w.as.-;duly -writing, .notified ’ Tiled, (cid:127) (cid:127) .for discharge.-”.' of the’said reasons his.' Plaintiff ah’ amended’ reiterated complaint/which' allegations- ayerred-..- .complaint’.but Of -. the’.original .also-
505 and 2 of 1 to of Sections was entitled the benefits he of XXII the Civil Service Commission of Regulation any that dis- provides which Philadelphia, of probationary of the completion required missal after that for cause only just of service shall be period reason for dis- must notified of the employee thereto writ- ten reply missal and within may, days, a complaint to the amended Plaintiff attached ing.”. . he received, of which had the notice of dismissal copy your that notify you is to as follows: “This reading County an Commissioners employee services as as of longer April will no be required, cause, Office to the an' 1952.”. The defendants filed plaintiff amended complaint again averring compelled “. . . because were discharged employers his . . . the purpose number of employees to reduce the averring and further of economy efficiency”, to to the notice disr no reply made effort nor he seek did duly given missal him, n regard do so. In answer to with allegation defendants alleged the civil service regulations, Charter of thе Home Rule provides Section 7-201 for re- Commission to the Civil Service right appeal and that plaintiff view dismissal any demotion, Plaintiff himself of that remedy. had failed to avail .on the pleadings. filed a motion The the court below which filed case was before argued order the. defend- holding opinion memorandum answer, insufficient complaint to'the amended ants’ file an answer. amended but them allowing law an- and more: detailed filed a supplemehtal. defendants ' reduced plaintiffs. employers averred swer-. It ¿umber'-bf- .economy.'-,in: for reasons of théif employes, .'a,reorgani- undergone had Bureau that''the- Children’s' city:commission- the personnel zation'.and-that been, and: number of. reduced' invest office hád ers” tigators Children’s Bureau had been reduced from 21 to 16 between 1952 and the end of January 7, and that April, 1952; was one those eliminated and his work District was con- solidated with that of another district. The defend- ants that he alleged also had failed to investigate had filed false and required, incomplete, inadequate and had been insubordinate. Mat- reports, Under New ter the defendants further averred that the Children’s *11 Bureau had been abolished under an order of the Mu- nicipal Court dated 1953 this April 17, and that order was filed being carried out at time the its sup- answer. plemental
Despite many averments the extended plead- in this on motion for ings plaintiff’s judgment case, on the averments the defendants’ an- pleadings swers that was because the plaintiff discharged city commissioners reduced the their employes number of. that position for reasons economy plaintiff’s eliminated consolidation of must be taken as by work, true.. The abolishment of the thus alleged n . more for the prevented summary without entitled to notice and be- being hearing not plaintiff fore dismissal under the no additional Essinger rule, with thereto were order respect required averments forth a defense. It is dis- unnecessary again to. set made this appellee regard contentions cuss which in the rejected supra.- considered and Gaul case, were counsel makes the argu-. However,, appellee’s additional case where did plaintiff unlike.the Gaul mentthat, notice was to the given employe, or not whether plead that here set forth notice was havihg given, .stating "Such'notice Services- would it- must be required, cause”, longer-' “no assumed person- .of the dismissal the.'cause reasons to; delinquency is, the-per:., Jhat employe, .the al: some .in Certainly the elimination of forman.ce of Ms duties. employe’s position for his dismissal much cause is as unsatisfactory performance of his duties. Crede as the Pittsburgh Pa. 49 A. 2d this Court, v. et al., speaking through In the “. . . Mr. Justice said: Drew, positions two instant the elimination case, economy by City Engineer rea Council of Assistant discharge ‘just of two em causе’ for sons was nothing ployees: more for . . . There was, therefore, (Emphasis supplied). . .”. Director establish. assuming that the words “for cause” However, meaning appellee the restricted as notice sent have them a sufficient answer to cribed to counsel, appellee’s contention based thereon is dismissal posi having of the abolishment of his occurred because any required. appel no notice of kind was That tion, employer required than he lee’s did more do no Such volunteered action did not dero avail. gate propriety of the from the dismissal without notice Essinger under rule. It is true the notice employe in to the dismissed case Gornman *12 emphasized Opinion was in the of the but this Court, must be taken in connection with and related to the discharge that the admitted fact there occurred because delinquency performance employe’s in the of the du underlying ties. The and basic reason for the decision appears analy in the Gornman as from a careful case, Opinion Concurring of the Court sis and the Opinion justice was that as a matter of fundamental municipal employe enjoyed who tenure of office was charges entitled know and meet before dismissal the delinquency against Obviously him. made this rea opportunity ap son notice and to be heard is not position question lawfully licable where the in is abol ished. There can be no reinstatement to an office which longer no and the manner exists, which the dismissed
incumbent performed the duties of his employment of no consequence.
In Appeal No. 344 (the case) al- Jennings plaintiff leged she was chief employed as clerk the office of the sheriff prior to the Gity-County Consolidation Amendment and that during continuance such employment and before she had been afforded an op- portunity pass a test as qualifying provided by the Charter (Section A-104) on January 2, 1953 she was “peremptorily and unlawfully discharged” pri- without or written notice to her the Personnel Director of any just reasons therefor cause constituting proper and. withоut been afforded an having reply days provided by within ten writing Civil Service She further averred that Regulations. the first and notice of dismissal she had received only just which read: “For was letter from the sheriff in the Sheriffs Office has been your cause, employment 1953. unfinished January Any effective terminated, and identification card Sheriff’s business, your badge your supervisor turned in to immediate at must be and cases, plain- As Gaul Jacobson once.”. to her be restored and prayed tiff she Defendants filed an answer denying her damages. paid clerk but that employed as a chief plaintiff clerical duties only performed consisting had she items the purchasing required care of taking the vouchers prop- seeing office and were sheriff’s sum- assisted writing up also and erly forwarded, and that the jurors prospective monses for in the fur- cause, just proper . . dismissed in or- Department the Sheriff’s reorganization ther that “plain- economy”, efficiency effect der to person no other *13 and abolished was position tiff’s and duties former- functions the perform to appointed it Matter New her”. Under by performed ly had filed plaintiff January averred that on appeal which with the Civil Service appeal Commission, that averring still and pending undetermined, her dis- since compensation been earning had plaintiff in her to credit give had failed missal which she are further advised that “Defendants and complaint an undue would plaintiff impose that to reinstate the unjustly public affect the the burden would upon City, confusion.”. to disorder and and would tend interest, on the motion Following by plaintiff an amended leave to file the pleadings granted in which the averments was filed and answer which abolishing as to the the original repeated were that It was further averred plaintiff’s position. the the notice of January 2, addition written shortly before date received oral notice in the process the sheriff to the effect deputy from office duties which sheriff’s reorganization taken consolidated and over were performed being she office, naming them; of the employes other she to do so, had although plaintiff to answer reasons. these attempt not answer did Matter an- New the original under The averments repeated. swer were contained summarizes allegations
The foregoing
on plain-
Jacobson case,
As
pleadings.
con-
averments
summary judgment
tiff’s motion
answer,
repeated
tained in the defendants’
was abolished
answer,
amended
ef-
sheriff’s
department
upon
reorganization
must be taken as
economy
true,
efficiency
fect
on
requiring disposition
a defense
constituted
this
contrary
contentions
appellee’s
merits. All
made in our consider-
rulings
been covered
have
cases.
the Gaul and Jacobson
ation of
*14
Coal
Kittaning
v.
Company Moore et
362 Pa.
al.,
66 A.
128,
2d
this Court
273,
stated at p. 132: “The
do
pleadings
not
present
case that
is clear and free
from doubts and in such circumstances
a summary
. .
improper:
. ‘Doubtful cases should go
especially
trial,
those involving intricate
relations
an
demanding
inquiry into the facts of the controver
sy’ : Helfenstein v. Line Mount. Coal
284 Pa.
Co.,
78,
. . .”.
81,
What was there said is especially true when
resort is had to the extraordinary
remedy mandamus
where the
right
the issuance of a
writ
peremptory
must clearly appear. See: Travis v.
370 Pa.
Teter,
87 A. 2d
177; Waters v.
367 Pa.
Samuel,
618, 622,
We are of the opinion that the court erred in enter- ing summary judgments these cases. An issue of fact, determinable by trial on the merits was sufficient- ly raised in еach case, namely, was there a bona fide abolishment of the plaintiff’s position. There is a pre- sumption that the position was eliminated in good faith, but this may be overcome by evidence that the abolish- ment awas mere pretense or subterfuge to cover up discharge of an employe for political and con- reasons, not sequently made in faith in good the interest of economy and efficiency.
After the taken appeal in this case, City filed a in this petition Court requesting the record be considered as though certain facts had been averred in the defendants’ answer. These facts, contained were that after the therein, plaintiff Jennings was dis- frоm the charged sheriff’s office she was employed the office of the treasurer from city which office she later voluntarily resigned and applied and received from the pension payments City. petition prayed in the alternative that we remand the record to the court below to afford the to file City a supplemental these facts. containing Being opinion we should hear the case on the rec- as it ord existed when de- appeal was we so taken, termined it. Since the record must be remanded for further proceedings, petition shall be considered denied without prejudice to the right *15 amend its answer the court below. in each of the cases is reversed and
the record remanded with a procedendo.
Dissenting Opinion by Mr. Justice Bell Ja (in cobson v. : Philadelphia)
Plaintiff filed complaint mandamus alleging that he was as a employed children’s in the agent of- fice of the County Commissioners prior to the City- County Consolidation Amendment adopted on Novem- ber and that 6, 1951; on 1952 the April defendants, the City him Commissioners, unlawfully discharged from his employment and dismissed him from the serv- ice of the Philadelphia; prayed he be restored to his position and his paid damages. His notice of dismissal read: “This is to notify you that your service as an employe the County Commission- ers office will no longer be as of required, cause, April 1952.” Defendants subsequently filed an an- swer which averred that had they reorganized Chil- dren’s Bureаu and had reduced the number of employes for reasons of and that plaintiff’s economy, was one of those eliminated and his work was consoli- dated with that of another district. The defendants also that he had failed to alleged investigate as re- had filed false and quired, incomplete, re- inadequate ports had been insubordinate. The question arises in- late to an came too validate
whether discharge. valid so stat expressly without
The majority’s decision, the decision meaningless or makes overrules ing, 111 A. Pa. 2d 121. Philadelphia, Cornman v. stated accurately is well and that decision held What in the as follows: syllabus is dismissed [County] employe
“2. Where such it ‘for cause’ just states that is dismissal notice and the op- is no but the cause and he specified him and have any charge against to answer portunity is invalid. the dismissal hearing thereon, invalidly has been dis 3. Where such an employe of man an action missed and seeks to be reinstated forth setting answer, damus, first dismissal which con employees reasons time, give validity stituted the does not* ‘just cause’, any and constitute defense to unlawful dismissal action of mandamus.” *16 for admits the
Plaintiff’s motion facts clearly but not the pleaded, answer which are well or conclusions of just conclusions viz. pleader’s cause, Pa. 114 A. v. 382 Allegheny County, law: Gardner 374 Pa. A. 2d Narehood v. 96 895. Pearson, 2d 491; affirm lower Court which held that this I would the v. 380 directly by is ruled Cornman Philadelphia, case Justice case M. Stearns, supra. Allen Pa., said : 325) of the opinion Court, (pages 323, writing Herculean effort of defendants to dis- “Despite to the County employes contrary all possess plain pro- Charter and this Court’s visions of the decisions, is the their dis- controlling question legality of single sufficiency method particularly missal ‘for for the removal of such cause’. employes employed *Italics, ours.
In Carrow v. Philadelphia decided Pa., we supra], [371 former could not be County employe discharged a ‘just reasons but cause’. As political only above plaintiff received written notice which stated, terminated. just employment cause’ read, ‘[f]or or were reasons cause? constituting ‘just No facts nor the discharged employes were given* however, to learn any any or indeed given hearing they the derelictions with which were charged, a defense thereto. This was a violation present them the justice by fundamental and of rights Charter.
“When filed his in mandamus plaintiff complaint such insufficient at law. alleged assigned he reason was insubordi- Defendants answered that plaintiff It is and did not untidy cooperate. nate, inefficient, state- this is a sufficient contended defendants of fact to which raises a ‘just question ment of cause’ either the Civil Service Com- by jury be determined invalid and The discharge mission. comes late to validate it* new too up
setting facts facts it is obvious the dismissals “In the present the retention possible to make an attempt constitute being purely dismissals spoils system —such employed transpar- reasons. device political ently apparent.” cannot re- majority with the
I agree abolition of his position. bona fide was a cover there if in Carrow v. Phila- Justice stated Chief As Steen this Court A. 2d 196—where 371 Pa. delphia, *17 not discharged could County employe that a held remains cause —“It or without reasons political un- must be herein contained nothing that to add only * Italics, ours.
derstood. the dismissal of if as.preventing employes they are no other longer required, positions occupy —in if reason of of funds or the force lack work words, be reduced. as stated event, should however, the annotation of the Committee subsec- Drafting tion lay-offs section 7-401 (o) Charter, such reason should be determined on the any basis efficiency seniority service considerations.” it was While this sound and it dictum, law; quickly by city availed of departments. However, dictum did as the City mean, contends, a[n or alleged] reorganization alleged] spreading a[n division of an employe’s work other among employes constitutes an abolition of the case position. This is, like another transparent Common, subterfuge, pal pable political evasion and an indefensible violation of and Cornman v. Charter; if Philadelphia still the the answer law, alleging (a) reorganization eco nomic reasons аnd (b) comes too late inefficiency, validate the invalid discharge. Dissenting Opinion Me. Justice Bell (in Jen
nings v. Philadelphia) : Plaintiff, employed as Chief Clerk in the . office of the Sheriff prior the City-County Consolidation Amendment, dismissed in a letter from the Sheriff which, read: “For just your cause, employment Sheriff’s office has been terminated, effective January 2,1953.” Sheriff filed an answer in the mandamus proceeding brought by plaintiff stating, inter alia, in the process of reorganization of the Sheriff’s office the duties which she performed were being consolidated and taken over by other employes of the office, naming them.
Under Cornman v. 380 Pa. Philadelphia, A. 2d came too late. I would affirm this answer the lower Court which held that this case is directly- ruled by Philadelphia. Cornman v. Appellant, Pummer.
Clewell, v.