Koester v. Philadelphia

46 Pa. Super. 110 | Pa. Super. Ct. | 1911

Opinion by

Beaver, J.,

The right of the plaintiff to recover his pay for services as a policeman during a period of suspension from duty, while the finding of a court which tried him was in the hands of the mayor for approval, without which he could not legally be discharged, is to be determined entirely by the interpretation of what is popularly known as the Bullitt bill, passed June 1, 1885, P. L. 37.

There are a number of assignments of error which, whilst they might bear some discussion, would carry us far afield along lines which are not strictly pertinent to the real question involved.

The real controversy arises under the interpretation of the Bullitt bill, and, as we view the matter, it is covered by the opinion of the court upon the rule for a new trial and motion for judgment n. o. v. We think the opinion of Judge Brégy covers all the essential features of the case, and with it the majority of this court are in accord. We cannot see that general discussion of the questions involved in the answers to points would add anything whatever to the conclusiveness of the opinion of the court below. True it is perhaps that the points, based upon the discharge of an employee, upon general principles, contain a correct interpretation of the law as it applies to such cases, but those are not involved here. The plaintiff was tried under the provisions of the Bullitt bill, was suspended it is true in accordance with the finding of the court which tried him, but that court did not authorize his suspension without pay, and the director had no power under the law to suspend him without pay, except by the directions of the court.

We quite agree with the court below that, without express authority from the court, the director of public safety could not suspend from pay. It is true that in the tenth paragraph of sec. 1 of art. Ill of the Bullitt bill (p. 42) the provision is made that “It shall be lawful for the director of the department of public safety, at his discretion, to suspend from duty before trial any person charged as aforesaid, until such trial can be had, with or without pay as such court shall afterward determine, but no trial shall be delayed for more than one month after charge made,” and immediately following this is the provision that, “The finding of the court of trial or inquiry as aforesaid shall be of no effect until approved by the mayor.”

There is no intimation of suspension without pay, except by express authority and direction of the trial court, and, therefore, the implication at least is that, as the approval of the mayor is necessary to dismissal, pay would continue until the policeman was dismissed, there being no intimation in the finding of the court of loss of pay prior to final discharge.

Further discussion we think is not necessary, inasmuch as the opinion of Judge Bkegy referred to fully covers the case.

Judgment affirmed.