375 Pa. 378 | Pa. | 1953
Lead Opinion
Opinion by
Harry E. Wylie and John M. Geisler, two of the defendants in a declaratory judgment proceeding instituted by the first class Township of McOandless, appeal from the order of the lower court sitting en bane, the majority of whom sustained the action of
On November 4, 1952 MeCandless Township was a second class township. On that date an election was held in which the voters voted to change the Township from a second to a first class township. On November 25, 1952 the County Commissioners of Allegheny County certified to such election result. At the time of the election, MeCandless Township had in its employ the appellants Wylie and Geisler, one Eoy Yingling and one William Blakely, all of whom had become permanent full-time police on October 10, 1952. It also had in its employ one Frank F. Eaupp who had been a policeman for more than 17 years, but was temporarily released from the police force because of illness. On December 24, 1952 the court of common pleas appointed five commissioners for the new first class township who, after taking oath as such on January 5, 1953, on the same day appointed a Civil Service Commission of three members under the provisions of the 1949 First Class Township Code. Although this Commission prepared rules and regulations, they had not been approved by the MeCandless Township Commissioners at the time of the hearing in the lower court. On the same day, January 5, 1953, the new Township Commissioners appointed three temporary policemen, namely, the above named William Blakely and Eoy Yingling as patrolmen (thus continuing their former employment) and Maurice J. McCann as chief of police; they also instructed the Secretary of the Town
Under the pleadings, two questions are presented: (1) Do the employment rights conferred by the Police Tenure Act of June 15, 1951, upon police officers of a second class township survive when the township becomes one of the first class? (2) If the first question is answered in the affirmative, then are the police officers obliged to acquire civil service status under the First Class Township Code of 1949 which repealed the Police Civil Service Act of 1941, so far as it related to townships of the first class, but reenacted its civil service provisions?
A question preliminarily arises whether this is a proper case for declaratory judgment. If only the first stated question were involved, a proceeding by appellants in mandamus against the Township Commissioners for reinstatement would have been not only an adequate but the proper remedy. However, the two questions involved are interrelated, and appellants’ contention embraces both in that it is claimed by them that under the Police Tenure Act they are entitled unconditionally to continue in their employment. The appellee Township not only contends that appellants have no employment rights but that even if they do, they must nevertheless in due course acquire civil service status under the civil service provisions of the Township Code. We have held that a declaratory judgment will not be rendered to decide future rights in anticipation of an event which may never happen and that a petition for declaratory judgment is properly dismissed where the proceeding may prove to be merely
Prior to 1941, police employed by boroughs, incorporated towns and townships had no civil service or job tenure rights and were subject to removal, without cause, at the pleasure of the authority that appointed them. The Police Civil Service Act of 1941, June 5, P. L. 84, 53 PS §351.1 et seq., changed this situation with regard to boroughs, incorporated towns and townships of the first class, employing three or more police. Police employed by such municipalities were granted job tenure rights which prohibited their dismissal except for causes stated in the statute, after public hearing and with right of appeal to the courts. The First Class Township Code of May 27, 1949, P. L. 1955, 53 PS §19092-101 et seq., which extensively reenacted, amended and added to The First Class Township Law of 1931, repealed the Police Civil Service Act so far as it related to townships of the first class but substantially reenacted its civil service provisions. Legislation to this point only partially endorsed and granted police tenure. In boroughs, incorporated towns and townships of the first class, job tenure was limited to
The appellee township argues that the Police Tenure Act is clearly limited in its application to townships of. the first class having a police force of less ■ than three members, and here we have a township which contemplates and has appointed three police, thereby making the civil service provisions of the 1949 First Class Township Code applicable; that when McCandless became a first class township there was a governmental change, a new entity was created and the new commissioners could start “from scratch”; they could ignore all policemen employed by its municipal predecessor and appoint a new police force of three or more members.
In Simpson v. South Mahoning Township School Board et al., 365 Pa. 567, 76 A. 2d 385, this Court held that upon the consolidation of two school districts into a joint school, the teachers (professional employes) had the right to continued employment, and that the joint board was required to continue to employ teachers in accordance with their seniority unless it was
When the Township changed from second class to first class, appellants had acquired job tenure under the Police Tenure Act of 1951 which clearly created substantial rights and liabilities and which, under the savings clause in the Township Code, survived the transition of the township from second to first class. “Liabilities” is a broader term than “debts”. The word “liability” has been held to include an employe’s right to reinstatement after wrongful discharge: National Labor Relations Board v. Universal Camera Corporation, 179 P. 2d 749, (United States Board of Appeals, Second Circuit, opinion by Judge Learned Hand). The Police Tenure Act granted rights to the policemen of second class townships and imposed upon such townships a liability to continue police officers in employment (unless discharged for cause). This liability passed to the Township when it became first class.
In support of its contention that even if appellants’ right to employment survived the Township’s change in class, they nevertheless were subject to the civil service requirements of the First Class Township Code, appellee points to the case of Scott Township Civil Service Commission Appeal, 166 Pa. Superior Ct. 486, 72 A. 2d 137, as decisive. We do not agree. The Scott case was decided prior to the passage of the Police Tenure Act of 1951. In that case, Scott Township, a town
Under the Township Code the new Commissioners were given the power to appoint policemen and reliance is had upon the common law rule that the power to appoint includes the power' to remove. But this rule must give way to a statutory declaration of public policy to the contrary. The liability to employ and the right to be employed under the Police Tenure Act and preserved by the savings clause in The First Class Township Code constitute an expression of public policy. In Minkin v. Minkin, 336 Pa. 49, 7 A. 2d 461, Mr. Justice Linn, speaking for this Court, said at p. 52: “The legislation was a declaration of public policy on the subject and necessarily displaced any policy to the contrary, if, in fact, it existed. ‘The public policy of a state is certainly indicated by its legislation. In Carpenter’s Estate, 170 Pa. 203, [32 A. 637] we said: “How can there be a public policy leading to one conclusion when there is a positive statute directing a precisely opposite conclusion .... There can be no public policy which contravenes the positive language of a statute.” ’ Northern Central Ry. Co. v. Walworth, 193 Pa. 207, 214 et seq., 44 A. 253.”. And see Tragesser v. Cooper et al., 313 Pa. 10, 169 A. 376, where it Avas
Section 20 of The First Class Township Code of 1949 (53 PS §19092-646), provided that policemen employed at the effective date of the Act should continue to hold their positions without taking the competitive examinations required under the Act’s civil service provisions. Thus as to policemen of an existing first class township having a police force of less than three members (who were not required to obtain civil service status under the Police Civil Service Act of 1941) and as to all policemen whose employment' antedated the Police Civil Service Act (which contained the same exemption as to existing employes), job tenure was assured by the Township Code', without the necessity of obtaining civil service status. We see. no sound reason for differentiating in this respect between former employes of a first class township' and former employes of a second Class township ’ who, upon change of the township from second' to first class, by virtue of the Police Tenure Act of 1951 and the savings clause of the Township Code automatically enjoyed job tenure. By the legislation enacted, upon the subject we think there was a Statutory, declaration ■ of public policy not only to grant job tenure to all policemen of the municipalities covered thereby but to exempt those currently employed from the necessity of acquiring civil service status through' the' taking of competitive examinations. In the present case appellants required no appointment. The Police Tenure Act and the savings clause of the Township Code continued their employment without any action on • the part’ of ■ the new Commissioners. ■
The judgment entered by the court below is hereby vacated and the record is remanded for the entry of judgment in accordance with this opinion.
Dissenting Opinion
Dissenting Opinion by
This is not a proper case for a declaratory judgment — a proceeding which is naturally appealing, especially to laymen and experts who have not had much experience in the practicalities of the law.
It will serve as a first step to breach the policy that the Courts of Pennsylvania have heretofore established and maintained against declaratory judgment assaults, namely, the Courts in their judicial discretion, should allow declaratory judgment proceedings —not to decide future rights, but — only when an actual controversy exists or when litigation is imminent and inevitable: Eureka Casualty Company v. Henderson, 371 Pa. 587, 92 A. 2d 551; and then only in very exceptional cases. The reasons for this are manifold. The extensive use of declaratory judgment proceedings will result in a multiplicity of litigation which will swamp the Courts. Moreover, because in the particular case then litigated the parties may be interested in only one phase of the subject matter, or because all of the facts may not be then known or not then readily foreseeable, or may not be completely pre
Furthermore, under the majority opinion, there is no clear line of demarcation or yardstick or standard which will enable Behch and Bar to determine fairly, certainly, and with justice to all, when such proceedings should lie and when they should not; or to explain or justify our position to litigants and counsel whose petitions for a declaratory judgment are refused.
We note in this case that there are several adequate remedies without resorting to declaratory judgment proceedings. Moreover, the majority could have reached the same result by writing an opinion containing dicta, in which I would have concurred. No matter how often any Judge may deprecate dicta in another Judge’s opinion, it is an indisputable fact that every Judge, consciously or unconsciously, often includes dicta in his opinions.
The City of Philadelphia has recently adopted a new Charter, out of which have arisen a number of actual controversies not only pressing in nature and time, but of tremendous public importance. At least 100 important and pressing questions involving a construction of this great Charter will inevitably arise and be litigated in the near future. If there ever was a case or cases where declaratory judgment proceedings should appropriately lie, it would be in cases involving the construction of Philadelphia’s new Charter — yet we have rejected a declaratory judgment proceeding in such cases. How can we justify our action here and there?
