*537Dissenting Opinion by
Mr. Justice Barbieri:I must respectfully dissent from the majority’s conclusion that the preliminary injunction issued by the Commonwealth Court has no apparently reasonable grounds and must therefore be overturned. In so doing, the majority holds that any public employe, not statutorily protected from discharge at will, may be fired solely because of his political affiliation or sponsorship at the time he was hired.1 I find this view unacceptable even aside from statutory considerations, for even if it were true that in these times a public employer may fire a person who does not have tenure or civil service status for no reason at all, it would not follow in my view that such a public employe could be fired for a wrong reason. And such a firing would be as unjustifiable to me whether it was based upon the nature of the “sponsorship” (the word used by defendants and the majority) or upon the affiliation of the employe at the time of hiring. I see no legal difference in the context of this case between “sponsorship” and “affiliation”. If the nature of the employe’s sponsorship at the time of hiring is a proper basis for firing, the broad scope of such a principle is obvious, for I can see no rational or logical basis for differentiating between sponsorship by a political party, such as in this case, and sponsorship by any other association which sponsors or aids in obtaining employment for unskilled workers such as those in this case. We are all aware that organizations, acting along racial and religious lines, exist and are uni*538versally supported, in their efforts to obtain employment for their people. No one would say that such employes could be fired solely because the new employment authority was not of the same religious persuasion or color as that of the sponsoring entity. In short, I am unable to agree that political affiliation or sponsorship in this category of employes (those needing assistance to obtain employment) can be sensibly treated as discrediting or disqualifying any more than in the cases of hirings because of sponsorship by religious or racial groups. It goes without saying, of course, that an act of the Legislature would be deemed to be unconstitutional by every court in the land if it provided that public employes could be discharged solely because their sponsorship had been by racial or religious associations.
Quite aside from such logical and practical considerations, however, while the majority holding is based upon, and may be consonent with familiar concepts of patronage and the “spoils system”, I think a new day has dawned for “non-policy making” public employes,2 legislatively as well as constitutionally; and that the conclusion reached by the majority is in disregard of the plaintiff-employes’ First Amendment right of freedom of association, circumvents the policy of the Public Employe Relations Act, Act of July 23, 1970, P. L. 563, No. 195, 43 P.S. §1101.101 et seq., and presents a claim cognizable under the Civil Rights Act of 1871, 42 USCA §1983. I disagree, of course, with the majority’s conclusion that the employes in this case “are not constitutionally or statutorily protected”.
The majority relies upon the decision in Cafeteria Workers v. McElroy, 367 U.S. 886, 6 L. ed. 2d 1230 (1960), for the proposition that a public employer may summarily dismiss a government employe, absent con*539trolling legislation. That decision is inapposite here for several reasons. First, the case dealt with the revocation of an employe’s identification badge, needed to gain admission to the defense facility involved, for security reasons. Next, the employe was not a public employe, but merely a person employed by a private concessionaire who was operating the cafeteria on the premises under a contract with the facility. Further, the contract between the government and the private employer permitted this kind of action by the facility superintendent and security officer. And finally, the majority opinion clearly provides, in language more appropriate to this case, as follows: “Those cases [United Public Workers v. Mitchell, 330 U.S. 75 and Wieman v. Updegraff, 344 U.S. 183] demonstrate only that the state and federal governments, even in the exercise of their internal operations, do not constitutionally have the complete freedom of action enjoyed by a private employer. But to acknowledge that there exist constitutional restraints upon state and federal governments in dealing with their employes is not to say that all such employes have a constitutional light to notice and a hearing before they can be removed. We may assume that Bachel Brawner [the discharged employe] could not constitutionally have been excluded from the Gun Factory if the announced grounds for her exclusion had been patently arbitrary or discriminatory — that she could not have been kept out because she was a Democrat or a Methodist.” 367 U.S. at 897-98, 6 L. ed. 2d at 1238. (Emphasis supplied.)
In spite of the above language, the majority of our Court now countenances precisely what the United States Supreme Court has declared to be unconstitutional. It is true that no case has ever decided that the “spoils system” is unconstitutional, but the clear implication of many United States Supreme Court decisions may require just that result. United States v. *540Robel, 389 U.S. 258, 19 L. ed. 2d 508 (1967), which involved a Communist Party affiliation, aside from holding Section 5(a) (1) (D) of the Subversive Activities Control Act of 1950, 50 U.S.C.A. §784(a) (1) (D), unconstitutional, clearly mandates that no public employe may be discharged from his employment merely because of his political affiliation or his membership in a political organization, since such a discharge would run afoul of the First Amendment. In United Public Workers v. Mitchell, 330 U.S. 75, 91 L. ed. 754 (1946), the Court observed, at page 100, that “Congress may not ‘enact a regulation providing that no Republican, Jew or Negro shall be appointed to federal office, or that no federal employee shall attend Mass or take any active part in missionary work’ ”. See also Wieman v. Updegraff, 344 U.S. 183, 97 L. ed. 216 (1952). It is clear from these decisions that a government employe may not be dismissed solely on grounds of his political viewpoint or association, i.e., that he may not be dismissed or suspended for the exercise of his First Amendment rights. See, Pickering v. Board of Education, 391 U.S. 563, 20 L. ed. 2d 811 (1968); Keyishian v. Board of Regents, 385 U.S. 589, 17 L. ed. 2d 629 (1967); Chalk Appeal, 441 Pa. 376, 272 A. 2d 457 (1971).
Most recently, the United States Supreme Court, in Connell v. Higginbotham, 39 L.W. 4722 (1971), passed upon the validity of a Florida loyalty oath to which each state employe was required to swear or affirm as a condition of obtaining employment. The Court there upheld that part of the oath which required the applicant to swear or affirm that he will support the United States and Florida Constitutions. Mr. Justice Marshall, in his concurring opinion in which Mr. Justice Douglas and Mr. Justice Brennan joined, pertinently stated, at page 4723: “Such a forward-looking, promissory oath of constitutional support does not in my view offend the First Amendment’s command that the grant *541or denial of governmental benefits cannot be made to turn on the political viewpoints or affiliations of a wouldbe beneficiary(Emphasis supplied.)
As previously noted, I must also disagree with the majority view that the appellees have no rights protected by the Civil Rights Act of 1871, supra. In American Federation of State, Co., & Mun. Emp. v. Woodward, 406 F. 2d 137 (8th Cir. 1969), the Court of Appeals for the Eighth Circuit held that municipal employes who asserted that they had been discharged because they had joined a labor union had presented a claim which was cognizable under the Civil Eights Act of 1871 and reversed the District Court’s dismissal of the complaint.3 In the course of its opinion the Court stated, at page 139: “The First Amendment protects the right of one citizen to associate with other citizens for any lawful purpose free from government interference. The guarantee of the ‘right of assembly’ protects more than the right to attend a meeting; it includes ‘the right to express one’s attitudes or philosophies by membership in a group or by affiliation with it or by other lawful means.’ ” (Citations and footnote omitted.) See also, McLaughlin v. Tilendis, 398 F. 2d 287 (7th Cir. 1968); Service Employees Internat'l U. v. County of Butler, Pa., 306 F. Supp. 1080 (W.D. Pa. 1969). The Court further discussed the various Supreme Court decisions relating to the protections afforded public employes, concluding its discussion, at page 140, with the following: “Again, in Keyishian v. Board of Regents of University of State of New York, 385 U.S. 589, 605, 87 S. Ct. 675, 685, 17 L. ed. 2d 629 (1967), the Court specifically rejected the theory that public employment ‘may be conditioned upon surrender of constitutional rights which could not be abridged by direct government action.’ ”
*542It is clear that the Legislature may not statutorily exclude from public employment all persons who are members of the Democratic Party, Republican Party, Communist Party, or the American Federation of State, County and Municipal Employees, AFL-CIO, simply because of their membership in such groups. The majority view that the governor may exclude a person from public employment because of his political affiliation, is clearly the proscribed indirect government action mentioned in Keyishian, supra, and which we are constitutionally prohibited from condoning.
Further, a claim that an employe has been excluded from public service merely because of his political affiliation does present a proper claim under the Civil Rights Act as an action “under color of . . . custom, or usage, of any State . . .” Avhich subjects a person to “the deprivation of any rights, privileges, or immunities secured by the Constitution. . . .” This is not only clear from the language of the act, but also follows a fortiori from the decisions which hold that a claim of exclusion from government employment on the grounds of union membership presents a claim cognizable under Section 1983.
I am not, however, willing to say that the governor may never discharge any public employe merely on the ground of his political affiliation. Such a position would unduly hamper the governor by saddling him with political appointees of a prior administration who not only disagree with his politics, but may be likely to disagree with his policies. It would seem fair, and consonant with constitutional protections, to allow a new governor to dismiss, merely because of political affiliations, any employee who is engaged in a policy making position, or in a position charged with implementing or devising the means of implementing the governor’s policies. These are the employes at will referred to in Scott v. Phila. Parking Auth., 402 Pa. 151, 166 A. 2d 278 (1960) *543and Mitchell v. Chester Mousing Authority, 389 Pa. 314, 132 A. 2d 873 (1957),4 cited by the majority. Further, United States Supreme Court decisions, such as Pickering v. Board of Education, supra, and United States v. Robel, supra, indicate that where the exercise of First Amendment rights will unduly interfere with the orderly functioning of government, those individual rights may be subordinated to the governmental interest, if, in the balance, the governmental interest requires greater protection. See also, Chalk Appeal, supra. There can be no question that the appellee-employes in this case will not adversely affect the policy making or implementation functions of government, since these are unskilled and semi-skilled employes whose daily occupations are merely to maintain the public highways. Under such circumstances they may not be discharged for the patently arbitrary and discriminatory reason that they are or were members of the Republican Party.
There is yet one further reason for my disagreement with the majority which is grounded on the new Public Employe Relations Act, Act of July 23, 1970, P. L. 563, No. 195, 43 P.S. §§1101.101 et seq. In Article I, entitled “Public Policy”, the legislature declared the policy of the Commonwealth to be to protect the rights of public employers, public employes and the public at large and “to promote orderly and constructive relationships between all public employers and their employes, subject, however, to the paramount right of the citizens of the Commonwealth to keep inviolate the guarantees for their health, safety and welfare.” Act of July 23, 1970, P. L. 563, No. 195, Art. I, §101, 43 P.S. §1101.101. It seems to me that the “spoils system”, at the level here involved, cannot promote the orderly carrying out of the governmental function, nor can it *544protect the rights of public employers and employes. Further, the act provides legislative intent, if not actual statutory protection, by granting to public employes5 the right to organize and to bargain collectively, so that those employes not already granted statutory job protection may have rights and protection similar to those enjoyed by protected government workers, e.g., Civil Service employes.6 The “spoils system”, as here applied, not only fails to comply with this legislative intent, but also militates against the orderly fulfillment of daily governmental activities and, as such, disserves the public health, safety and welfare.
The conclusion seems inescapable that the dismissals herein contemplated and completed are invalid and improper as violations of the First, Fifth and Fourteenth Amendments of the United States Constitution, the Civil Rights Act of 1871 and the Pennsylvania Public Employe Relations Act as it represents the Commonwealth’s public policy. A non-policy making, non-policy implementing public employe may not be discharged merely because of his political affiliations and viewpoints. Before any such public employe may be discharged he is entitled to due process protections which include a hearing, an opportunity to rebut any evidence against him and an opportunity to present evi*545dence in his own behalf. Anything less deprives the employe of federally protected rights. As the United States Supreme Court said in Wieman v. Updegraff, 344 U.S. at 192, 97 L. ed. at 222: “It is sufficient to say that constitutional protection does extend to the public servant whose exclusion ... is patently arbitrary or discriminatory.”
I dissent and would affirm the unanimous decision of the Commonwealth Court.
Mr. Justice Jones and Mr. Justice Pomeroy join in this dissenting opinion.Order Per Curiam, August 16, 1971:
Petition for reargument denied and supersedeas vacated.
Mr. Justice Barbieri, with whom Mr. Justice Jones joins, would grant reargument.
By not granting reargument, we have left unconsidered and unresolved a question vital to the Commonwealth and to many of its nonpolicy-making employees —whether or not Section 706 of the recently enacted Public Employee Relations Act permits dismissal of an employee solely because of his political sponsorship even though Section 706 prohibits dismissal except for “just cause.”
The majority states that the plaintiffs were “admittedly appointed for political reasons.” I do not so read the stipulation which states, merely as to the employer’s reason for the firing, that they “have been or will be terminated from their employment, because when they were hired they were sponsored for their employment by officials of the Republican Party. ...” I believe that this leaves open a question of fact for hearing as to whether or not the sponsorship was for political reasons, even under the majority view.
It Is stipulated that the employes involved herein are in “non-policy making positions”. Record 19a.
The District Court had dismissed the complaint on the ground that it failed to allege facts constituting a claim.
Both cases Involved the dismissal of the director of the authority concerned.
Art. III, §301(b) 43 P.S. §1101.301(b) defines public employe to mean: “Any individual employed by a public employer, but shall not include elected officials, appointees of the Governor with the advice and consent of the Senate as required by law, management level employes, confidential employes, clergymen or other persons in a religious profession, employes or personnel at church offices or facilities when utilized primarily for religious purposes and those employes covered under the Act of June 24, 1968 (Act No. 111), entitled ‘An Act specifically authorizing collective bargaining between policemen and firemen and their public employers. . .
Indeed, the failure of the legislature to provide civil service protection to some state employes and not to others is in itself an obvious form of discriminatory treatment.