Vega, Appellant, v. Burgettstown Borough
Supreme Court of Pennsylvania
November 25, 1958
reargument refused February 2, 1959.
394 Pa. 406
“Egbert v. deSolms, 218 Pa. 207 (1907), cited by garnishee is inapposite. There the settlors, husband and wife, created a trust, reserving to themselves the income for life, with remainder to their children, or to the issue of a deceased child. They retained the right to determine by will the proportions in which the various children would take. However, they could not appoint anyone but their children as beneficiaries, and, as there were children living at the time of the creation of the trust, the children as a class had a vested remainder. There is no similar vested remainder in this case. See Rienzi v. Goodin, supra.
“While defendant may be bound by the provision that the trust is irrevocable, see Rehr v. Fidelity-Philadelphia Trust Company, 310 Pa. 301 (1933), his creditors are not. Benedict v. Benedict, supra; Nolan v. Nolan, supra. Plaintiffs therefore are entitled to satisfy their claims out of both the principal and income of the trust.”
Judgment affirmed.
Mr. Justice BOK took no part in the consideration or decision of this case.
Edward V. Sciamanna, for appellee.
OPINION BY MR. JUSTICE BENJAMIN R. JONES, November 25, 1958:
This is an appeal from the action of the court below granting to appellee, the Borough of Burgettstown, the right to setoff against appellant‘s salary an amount earned by him in a private capacity during the period of his improper dismissal from his position as appellee‘s chief of police.
The present controversy arises from appellant‘s dismissal as chief of police by the Borough Council on February 6, 1954. On appeal, the court below imposed a suspension for a period of sixty days without pay from the date of the purported dismissal, but reinstated appellant as chief of police with a direction to pay him the salary due him from the expiration of the period of suspension on April 16, 1954 to the date of his reinstatement. The Borough appealed to this Court, which, in an opinion filed on November 14, 1955,1 affirmed the order of the court below. Appellant was reinstated on November 28, 1955. In the present action, appellant sought to recover his salary accumulated during the period of suspension. The appellee contended that the amount of salary should be reduced by whatever sums appellant earned from other sources during this period. Appellee‘s contention was upheld by the court below, and this appeal followed.
Appellant initially argues that the statute outlining the procedure for the removal of borough policemen is determinative of the present question. Section
Appellant urges that the use of the words “with full pay” by the legislature demonstrates that it was not its intention to have earnings from other sources deducted from the salary of reinstated policemen. This argument, by no means novel, has been successfully refuted by the Superior Court in Seltzer v. Reading, 151 Pa. Superior Ct. 226, 30 A. 2d 177. In the Seltzer case, in rejecting a similar contention on the part of an improperly discharged fire alarm operator, the Court stated: “Plaintiff seeks to avoid the application of this settled rule by the language of §10. of the above 1933 Act,
Undoubtedly, the legislature intended to do no more than prevent a monetary loss by the dismissed employee and to protect him from possible economic retribution by the discharging authority upon reinstate-
Neither party to this controversy disputes the test which is to be applied in determining the rights of an improperly suspended or dismissed person in the governmental service to reimbursement of his salary without deductions of earnings from other sources: i.e. is the person a public officer or a public employe? If the former, he is entitled to his salary without deductions; if the latter, he is entitled to his salary subject to a setoff of earnings from other sources.
The distinction is based on the theory that no contractual relationship exists between the governmental unit and a public official, and that the compensation, being incidental to the office which the official holds, is governed by the right to the office, and cannot be diminished by the application of the doctrine of mitigation of damages which is based on the existence of a contractual relationship. See: Seltzer v. Reading, supra; Coble v. Metal Township School District, 178 Pa. Superior Ct. 301, 116 A. 2d 113; Note, 150 A.L.R. 100.
Both parties have cited instances4 where this Court was faced with the problem of determining whether
The analysis by the Court below is in line with the test for the determination of a public officer recently approved by this Court in Commonwealth ex rel. Foreman v. Hampson, 393 Pa. 467, 473, 474, 143 A. 2d 369: “The test to be applied in determining a public officer was summarized in Alworth v. County of Lackawanna, 85 Pa. Superior Ct. 349, 352, as follows: ‘If the officer is chosen by the electorate, or appointed, for a definite and certain tenure in the manner provided by law to an office whose duties are of a grave and important character, involving some of the functions of government, and are to be exercised for the benefit of the public for a fixed compensation paid out of the public treasury, it is safe to say that the incumbent is a public officer within the meaning of the constitutional provisions in question. This we think is the effect of the adjudications on the subject. While this rule requires consideration of various matters in determining whether an office can properly be considered to be within the meaning of the clause of the Constitution under consideration, the character of the functions to be performed is of prime importance.‘”
Appellant‘s final argument is that his right to recovery is based on the order of the court below reinstating him as chief of police which should be treated as a final judgment against the appellee-borough from the date of its entry. This contention is untenable. The order did no more than hold that the appellant was improperly dismissed and directed his reinstatement with pay. The question of a setoff was not raised nor did the court purport to investigate the relationship between appellant and appellee to determine if a setoff was required. To hold that under these circumstances the appellee was required to comply with the order on the date of its entry would be to foreclose the appellee from raising and arguing an issue which at that time was not even material to the case.
Under the circumstances herein presented the court below very properly permitted appellee to setoff by way of deductions appellant‘s earnings from private sources during the period of his improper dismissal from appellee‘s service.
Judgment affirmed.
DISSENTING OPINION BY MR. JUSTICE MUSMANNO:
On February 15, 1954, the Council of the Borough of Burgettstown, Washington County, dismissed Henry Vega as chief of police, a post he had held for four years. He appealed the dismissal to the Court of Com-
Since this Court by its decision declared that the Borough had not been justified in dismissing Vega, Vega properly made a claim for the salary which was withheld from him during the entire time that he was qualified, ready and willing to take up his duties, namely, from April 16, 1954 to November 28, 1955. As his salary was $300 a month, the total amount due him under this computation was $5850. Buttressing his claim for the amount in question, Vega cited Section 4 of the Act of 1951, June 15, P. L. 586 (
The Borough resisted payment of the $5850 because Vega, while awaiting determination of the courts as to his rights, obtained employment with the Weirton Ice & Coal Supply Company in Weirton, W. Va., earning, during the period he was barred from his police chiefship, the sum of $5608.56. The Borough offered
This Court now affirms the judgment of the lower Court and, by doing so, amends an Act of the Legislature without the slightest authority to do so. It makes “full pay” read “part pay.” It does more. It penalizes the innocent party in a lawsuit and rewards the guilty party. The highest Court of this Commonwealth has declared that the Borough of Burgettstown illegally and unjustly dismissed Vega and yet this same Court now says that the guilty Borough is entitled to the $5608.56 which was paid by the Weirton Ice & Coal Supply Company to Vega for services rendered by him to that corporation. This Court thus introduces Burgettstown into a transaction in which it had no business whatsoever.
While law does not necessarily (unfortunately) have to coincide with the recognized virtues of good living, courts and judges should still avoid making decisions which are shocking to conscience and which are derogatory of public welfare. There is something quite startling (insofar as public welfare is concerned) about a Court decision which places a premium on sloth and a penalty on industry. If Vega had sat in his parlor for nineteen months doing nothing but watching television, eating sandwiches, and drinking beer, the Borough would have had to pay him $5,850, but, because he exerted himself, as a good citizen and a responsible member of society should, by working, while the Borough was denying him what he was entitled to, he must give up $5,608.56 which he earned by his own sweat and toil. Such a situation does not strike a very melodious chord on the piano of justice which I always
The Majority Opinion says: “The improperly dismissed employee is protected from financial loss but [is] not to be unjustly enriched.” But since the Majority‘s statement specifically declares that the employee was “improperly dismissed” how can there be an unjust enrichment? Even if the municipality paid Vega the entire amount of $5850 due him during the period of improper dismissal, he would still be out of pocket because of the not inconsiderable expense to which he was subjected in litigating his claim now proved to be in accordance with law.
The Majority cites the case of Seltzer v. Reading, 151 Pa. Superior Ct. 226, where “full pay” was also interpreted to mean “part pay.” But if it is wrong today to distort the plain wording of a statute, the distortion is not straightened by showing that on a prior occasion the same deforming manipulation took place. If the Legislature intended that where an improper dismissal occurs the employee should only be paid the difference between what he has earned and what he should have been paid during the dismissal interval, it would have been a very simple matter to have so stated. I believe that it is gratuitous on the part of this Court to read into statutes what is precisely not there and what was undoubtedly purposely omitted.
It may well be that the Legislature intended to penalize municipalities for improper dismissals by requiring them to pay the innocent and injured employee his full pay for the period he was under unjust accusation. It may also be that the Legislature intended by the provision in question to compel the municipality to proceed expeditiously in resolving any dispute between it and the employee. Under the Majority‘s ruling the municipality has nothing to lose by an undue
The Majority sees much merit in a distinction attempted to be drawn by the lower Court as follows: “Where the duties of the office are to be exercised for the benefit of the public, for a stipulated compensation to be paid by the public, where the term is definite and the tenure certain, and where the powers, duties and emoluments become vested in a successor when the office becomes vacant, the occupant of such office is a public officer. On the other hand, it is recognized that some officers, although they have some public duties to perform, are not to be considered public officers, when their work in the main, is of a ministerial nature . . .”
I fail to see the distinction. The Court says that a chief of police “exercises no public functions, his duties are purely ministerial.” I should think that the functions of a chief of police are quite public and that his duties involve a great deal of discretion. He does not arrest blindly or by chance, he does not establish fire lines and police lines by rote, he does not quell riots and disturbances by mechanical routine.
The Majority quotes from the case of Alworth v. County of Lackawanna, 85 Pa. Superior Ct. 349, 352, which says: “If the officer is chosen by the electorate, or appointed, for a definite and certain tenure in the manner provided by law to an office whose duties are of a grave and important character, involving some of the functions of government, and are to be exercised
With all respect, I must say that in a case of this kind, the distinction being attempted by the lower Court, and affirmed by this Court, between a public officer and a public employee is illusory and deceptive. Under the rule here announced by this Court a director of public safety would indubitably be regarded as a public officer and if dismissed improperly would, upon reinstatement, be entitled to the full salary of his office even though in the meantime he had been employed by a private corporation at a higher salary than his director‘s salary, while a chief of police, for doing the same thing, would lose his salary completely or have it considerably reduced. This is a distinction which does not appeal to my sense of justice and it is a distinction which, as I read the statute, the Legislature never intended to make.
When the Constitution is amended to provide that the Supreme Court shall sit as a super legislative reference bureau to rewrite statutes to conform to its idea of what the law should be, a decision such as the one now being promulgated will be entirely in order. However, until that time arrives, I must assert that we have no right to declare that when the Legislature says “full pay” it must have been unfamiliar with the rudiments of the English language, and meant to say “part pay,” or “full pay less all the money he has earned elsewhere.”
Mr. Justice BELL joins in this dissent.