26 Pa. Commw. 490 | Pa. Commw. Ct. | 1976
Opinion by
The City of Pittsburgh (City), Peter Flaherty, Robert Colville, Albert Mills, and John Doe (appellants) appeal from an order of the Court of Common
Leonard J. Monti (Monti) had been employed by the City as a police officer for more than 16 years when, on January 14, 1972, he, was notified by letter that he was being dismissed, effective January 17, 1972, because his employment was in violation of City Ordinances requiring City employes to reside within the City. In response to this action, Monti brought a civil rights suit in the United States District Court for the Western District of Pennsylvania, and that court ordered that he be reinstated. The court held that the appellants had denied him due process by not holding a dismissal hearing. The court refused, however, to order the payment of back wages, stating that such claim cannot be enforced under the Civil Rights statutes. Monti then instituted this action against the appellants in the Court of Common Pleas of Allegheny County to recover the wages which he had lost between the date, of his dismissal and the date of his reinstatement. The appellants counterclaimed, averring that Monti was not a resident of the City; that this nonresidency was a breach of the collective bargaining agreement which covered his employment ; and that the City was therefore entitled to reimbursement for all monies previously paid to Monti while he was not a City resident. The lower court, acting upon Monti’s preliminary objections, found the counterclaim to be lacking in specificity and sustained the preliminary objections with leave to amend. The appellants then filed an amended counterclaim to which Monti filed preliminary objections in the nature of a demurrer which the, lower court sustained, holding that the amended counterclaim had failed to state a cause of action. This appeal followed.
To sustain preliminary objections in the nature of a demurrer, it must appear with certainty that, upon the facts averred, the law will not permit recovery and, where any doubt exists as to whether or not the preliminary objections should be, sustained, that doubt should be resolved by refusing to sustain the objections. Schott v. Westinghouse Electric Corporation, 436 Pa. 279, 259 A.2d 443 (1969). The question before us is, therefore, whether or not we can say without doubt that the appellants have failed to plead facts sufficient to establish a legal action.
The appellants have based their counterclaim on the Collective Bargaining Agreement (agreement) which required Monti, as a condition of his City employment, to reside within the City. The failure to meet that condition (Monti’s nonresidency), however, in the absence of an express provision in the agreement to the contrary, did not create any contractual rights upon which the appellants could assert a claim for monetary damages. See Appeal of Edwin J. Schoettle Co., 390 Pa. 365, 134 A.2d 908 (1957); Martz v. Continental Casualty Company, 141 Pa. Superior Ct. 187, 14 A.2d 863 (1940); 3 A Corbin on Contracts §633 (1960). And, even if the nonresidency
We, therefore, issue the following
Order
And Now, this 6th day of October, 1976, the order of the Common Pleas Court of Allegheny County sustaining Leonard J. Monti’s preliminary objections in the nature of a demurrer and dismissing the appellants’ counterclaim is hereby affirmed.