This appeal arises from an order dismissing a complaint for failure to state a cause of action upon which relief may be granted.
On November 14, 1977, appellant filed a complaint in equity in the Court of Common Pleas of Allegheny County containing the following allegations. In October 1976, appellant applied for employment as a bus driver with the Port Authority of Allegheny County. He was interviewed and tested by employees of the Port Authority’s personnel division, and in July 1977, was informed that he could begin training as a bus driver in October 1977. On September 8, 1977, the Port Authority informed appellant that he would not be trained as a bus driver because he falsified his employment application. In filling out the application, appellant, unsure of the correct answer, did not respond to a question asking for information concerning appellant’s past felony or misdemeanor convictions. Appellant, however, subsequently informed a personnel, assistant of the Port Authority during an employment interview that in 1963 he had been convicted of an aggravated assault and battery that arose out of a domestic dispute and was sentenced to ninety days imprisonment. Appellant also told the personnel assistant that the Governor later unconditionally pardoned him for the offense. The complaint alleged that the Port Authority refused to employ him 1 because of this *7 pardoned conviction (and, by implication, not because of his failure to complete his employment application properly), and that this refusal allegedly violated appellant’s rights under article I, sections 1 and 10, of the Pennsylvania Constitution. The complaint prayed for an injunction “restraining the [Port Authority] from refusing to admit [appellant] to its bus driver training class and refusing to employ [appellant],” and for “such other relief as [the] Court may deem appropriate.”
On December 16, 1977, the Port Authority filed preliminary objections in the nature of a demurrer to the complaint. The demurrer alleged that as a matter of law the refusal of the Port Authority to employ appellant as a bus driver because of his failure to disclose his prior criminal conviction did not constitute a violation of article I, sections 1 and 10. The demurrer also alleged that appellant lacked standing to challenge the Port Authority’s actions, and that the court in equity lacked jurisdiction because appellant’s complaint failed to allege the inadequacy of remedies at law. On April 26, 1978, the lower court sustained the demurrer and dismissed the complaint. The lower court reasoned that “[a] refusal to hire because of a conviction for aggravated assault and battery is reasonable, given the fact that a bus driver is constantly dealing with the public, often under stressful and anger-provoking situations. Failure to disclose a material fact, such as the one in issue, is an element which may be considered, along with others, if any, factors in determining whether to enter into an employment contract. Furthermore, it may be noted that no person has a constitutional right to public employment. One merely has the right to be considered for a job on a fair and reasonable *8 basis.” Slip op. of the lower court at 2-3. 2 This appeal followed. 3
The legitimacy of governmental bans
4
on the employment of ex-criminal offenders has, during the last decade, been the subject of considerable judicial and legislative concern. Federal courts have held that a ban prohibiting the employment of. persons who have been guilty of past misconduct violates federal law unless the ban is rationally related to a
*9
legitimate governmental objective.
See, e. g., Thompson v. Gallagher,
Moreover, last year our Legislature enacted the Criminal History Record Information Act, Act of July 16, 1979, P.L. 116, No. 47, 18 Pa.C.S.A. §§ 9101 et seq. (effective January 1, 1980), which limits the use of criminal records by employers when making employment decisions. In part, the Act provides:
Convictions for felonies, as well as misdemeanor convictions and arrests for offenses, which relate to the applicant’s suitability for employment in the position for which he has applied may be considered by the employer. Misdemeanor convictions and arrests for offenses which do not relate to the applicant’s suitability for employment in the position for which he has applied shall not be considered by the employer.
*10 18 Pa.C.S.A. § 9125 (1979 Pa.Legis.Serv. at 110).
Furthermore, our Supreme Court has not hesitated to limit unwarranted governmental restrictions upon an individual’s right to engage in lawful employment on account of the individual’s past criminal record. In
Secretary of Revenue v. John’s Vending Corp.,
of the deeply ingrained public policy of this State to avoid unwarranted stigmatization of and unreasonable restrictions upon former offenders. This State in recent years has been unalterably committed to rehabilitation of those persons who have been convicted of criminal offenses. To foreclose a permissible means of gainful employment because of an improvident act in the distant past completely loses sight of any concept of forgiveness for prior errant behavior and adds yet another stumbling block along the difficult road of rehabilitation.
453 Pa. at 494 ,309 A.2d at 362 .
The Court therefore concluded:
Under the facts such as those presented in this appeal, where the prior convictions do not in any way reflect upon *11 appellant’s present ability to properly discharge the responsibilities required by the position, we hold that the convictions cannot provide a basis for the revocation of a wholesaler’s license.
453 Pa. at 495 ,309 A.2d at 362 .
See also Unemployment Bd. of Review v. Dixon,
27 Pa. Cmwlth. 8,
Article I, section 1, of the Pennsylvania Constitution provides:
All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.
Appellant argues that this provision guarantees him the right to be fairly considered for public employment, and that this guarantee was violated when the Port Authority refused to hire him as a bus driver because of a thirteen year old misdemeanor conviction for which he had been pardoned. He also argues that the Port Authority’s refusal to employ him solely because of this conviction constitutes a denial of “the full effect of the pardon and decreases [his] liberty without affording substantive or procedural due process.”
Although we have found no case in this Commonwealth directly on point, we have no trouble concluding that when a person is denied public employment on the basis of a prior conviction for which he has been pardoned, unless the conviction is reasonably related to the person’s fitness to perform the job sought, or to some other legitimate governmental objective, article I, section 1, is violated. The Supreme Court has consistently interpreted article I, section 1, as guaranteeing an individual’s right to engage in any of the common occupations of life.
See, e. g., Adler v. Montefiore Hospital Ass’n of W. Pa.,
The Port Authority’s argument that article I, section 1, does not guarantee an individual the right to secure public employment completely misconstrues the issue before us. It may be granted that no one. has a constitutional right to demand that the government create public employment in order to provide him with a job. However, once the government decides to create employment positions, it may not summarily reject an individual’s employment application on the ground that the individual has a prior criminal record, unless in doing so the government is furthering a legitimate governmental goal. To maintain that the due process guarantees of article I, section 1, do not attach in such a situation because the individual has no “statutory entitlement” to the employment position is to adhere “to the discredited rights/privileges distinction” that has been rejected by our Supreme Court.
Pa. Coal Mining Ass’n v. Insurance Dept.,
*14 Because a cause of action may arise under article I, section 1, if a person is denied public employment because of a prior conviction, it is clear that the lower court erred in dismissing appellant’s complaint upon the Port Authority’s demurrer. 6
“The standards for sustaining preliminary objections in the nature of a demurrer are quite strict. A demurrer admits every well-pleaded material fact set forth in the pleadings to which it is addressed as well as all inferences reasonably deducible therefrom, but not conclusions of law.”
Gekas v. Shapp,
In sustaining the Port Authority’s demurrer, the lower court violated these established principles in two respects. First, the court misread the complaint when it stated: “Failure to disclose a material fact, such as the one in issue, is an element which may be considered, along with others, if any, factors in determining whether to enter into an employment contract.” The complaint did
not
allege that appellant failed to disclose his prior conviction to the Port Authority; the complaint specifically alleged that he
did
inform the Port Authority of the conviction. The gravamen of the complaint is that the Port Authority refused to hire appellant because of this information. Second, the lower court erred by considering factual matters not averred in the complaint.
See Muia v. Fazzini,
The Port Authority argues that appellant’s complaint is deficient because it does not allege that its hiring standards are arbitrary or unreasonable, or that the Port Authority has a general policy excluding the hiring of persons with convictions. While appellant’s pleading would have been better had he alleged that the Port Authority’s refusal to employ him as a bus driver was without reasonable relation to any legitimate governmental objective, his failure to plead this does not amount to a fatal defect in the complaint. Appellant averred that he was denied employment as a bus driver by the Port Authority because of a thirteen year old assault conviction, that he had been pardoned for the offense, that he was in all respects suitable and qualified for employment as a bus driver, and that the Port Authority’s refusal violated his rights under article I, section 1. These averments sufficiently pleaded a cause of action.
We also reject the Port Authority’s argument that appellant’s rights under article I, section 1, turn upon whether the Port Authority has a general policy excluding the hiring of persons with assault convictions. Appellant has the right *17 under article I, section 1, to be free of arbitrary governmental action. The government may be arbitrary with or without a general policy.
In finding that appellant has stated a cause of action under article I, section 1, we wish to stress again what is repeated throughout this opinion. Public employers are not always precluded from considering a job applicant’s prior convictions in making hiring decisions. In some instances, the fact of a prior conviction, even though pardoned, will be extremely relevant, perhaps conclusive, on an individual’s fitness for a particular job. For example, an absolute bar against the employ of convicted arsonists as firemen would probably present no constitutional problems.
See Carlyle
v.
Sitterson,
Reversed.
Notes
. The complaint actually reads: “The Port Authority is refusing to employ or to continue Plaintiff in its employ, because of his past conviction.” The complaint thus alleges alternative causes of action against the Port Authority: either the Port Authority wrongfully refused to employ appellant as a bus driver, or it wrongfully discharged him after an employment contract had been entered into (presumably in July 1977 when appellant was told he could begin bus *7 driver training in October). On this appeal, however, appellant limits his argument to the sufficiency of the complaint in stating a cause of action for the Port Authority’s wrongful refusal to employ him as a bus driver. We shall, therefore, examine only this aspect of the complaint.
. The lower court did not discuss the other objections raised by the Port Authority. On this appeal, the Port Authority renews its objections that the complaint failed to state a cause of action and that the lower court lacked equity jurisdiction. It does not renew its standing argument.
For the reasons discussed below, we hold that appellant has stated a cause of action under article I, section 1, of the Pennsylvania Constitution, and that the order of the lower court must be reversed. We decline, however, to reach the Port Authority’s contention that since the lower court cannot grant specific performance of an employment contract, and an adequate remedy at law exists, appellant’s action should be certified to the law side of the court. The novel questions concerning the relief a court may order when an employer breaches a job applicant’s rights under article I, section 1, were not addressed by the lower court. Additionally, the briefs of the parties are not particularly enlightening regarding this matter. In these circumstances, we think it proper to allow the lower court to consider the matter first, assuming, of course, that the Port Authority pursues its objection on remand. We note that whether the lower court decides to retain equity jurisdiction or to certify the action to the law side of the court, its decision will be interlocutory. Goldman v. McShain, 432 Pa. 61,247 A.2d 455 (1968); Ridge Radio Corp. v. Glosser,417 Pa. 450 ,208 A.2d 839 (1965); Kramer v. Kramer,260 Pa.Super. 332 ,394 A.2d 577 (1978).
. Appellant does not argue on this appeal that the complaint states a cause of action under article I, section 10, of the Pennsylvania Constitution, and we do not consider that issue. However, in addition to arguing that his complaint states a cause of action under article I, section 1, appellant asserts that his rights under article I, sections 9 and 26, have been abridged. Because we hold that appellant’s claims against the Port Authority are cognizable under article I, section 1, we do not decide whether appellant’s failure to allege the violation of other constitutional provisions in his complaint precludes our consideration of those provisions on this appeal.
. The Port Authority concedes, as it must, that it is a public body performing essential governmental services.
See Port Authority of Allegheny Cty. v. Amalgamated Transit Union,
. The Port Authority compares appellant’s cause of action here to the cause involved in
Geary v. United States Steel Corp.,
It may be granted that there are areas of an employee’s life in which his employer has no legitimate interest. An intrusion into one of these areas by virtue of the employer’s power of discharge might plausibly give rise to a cause of action, particularly where some recognized facet of public policy is threatened. The notion that substantive due process elevates an employer’s privilege of hiring and discharging his employees to an absolute constitutional right has long since been discredited. But this case does not require us to define in comprehensive fashion the perimeters of this privilege, and we decline to do so. We hold only that where the complaint itself discloses a plausible and legitimate reason for terminating an at-will employment relationship and no clear mandate of public policy is violated thereby, an employee at will has no right of action against his employer for wrongful discharge.456 Pa. at 184 ,319 A.2d at 180 (footnote omitted).
Since Geary did not involve constitutional rights, a public employer, or a claim involving a refusal to hire a job applicant, it is distinguishable. It is further distinguishable because no clear mandate of public policy was involved. As noted above, “the deeply ingrained public policy of this State [is] to avoid unwarranted stigmatization of and unreasonable restrictions upon former offenders.” Secretary of Revenue v. John’s Vending Corp., supra. This public policy assumes added poignance where, as here, the Governor has exercised his power under article IV, section 9, of the Pennsylvania Constitution to pardon the offender. The Supreme Court has stated:
A pardon is the exercise of the sovereign’s prerogative of mercy. It completely frees the offender from the control of the state. It not only exempts him from further punishment but relieves him from all the legal disabilities resulting from his conviction. It blots out the very existence of his guilt, so that, in the eye of the law, he is thereafter as innocent as if he had never committed the offense. Commonwealth ex rel. Banks v. Cain,345 Pa. 581 , 584-85,28 A.2d 897 , 899 (1942).
See also Commonwealth v. Sutley,
Because of the substantial public policy favoring the rehabilitation of former offenders and their reintegration into society, if any wrongful discharge case is analogous to the present case, it is not
Geary
but
Reuther v. Fowler & Williams,
. It may be noted that a cause of action arises directly under the Constitution for the violation of rights guaranteed under article I, section 1, and no affirmative legislation is needed for the vindication of those rights in the civil courts.
Erdman v. Mitchell,