Cornman v. Philadelphia

Dissenting Opinion by

Me. Chief Justice Hoeace Steen :

The plaintiff in each of these cases was employed prior to November 6, 1951, in the Sheriff’s Office and, in virtue of the City-County Consolidation Amendment which was adopted on that date, became an employe of the City of Philadelphia. On January 2, 1953, plaintiffs were discharged by the Chief Deputy Sheriff, with the approval of the Sheriff, “for just cause.” They filed complaints in mandamus for reinstatement. The answers to the complaints filed on behalf of the defendants each averred that “Plaintiff was guilty of insubordination; he was inefficient and untidy in the performance of his duties; and he failed to cooperate during the process of the reorganization of the Department of the Sheriff’s office.” Notwithstanding such averment the court below entered judgments for the plaintiffs and ordered their reinstatement. Our court is now affirming those judgments.

Being convinced that the judgments thus entered and the opinion filed in support of them violate fundamental principles both of law and of procedure, I dissent for the following reasons:

(1) Because the action of the court indicates to my mind a complete misunderstanding of our decision *331in the Carrow case, 371 Pa. 255, 89 A. 2d 496. What we there held was that the employes of the former county offices could not be dismissed prior to being given a qualifying test, except for cause. We said explicitly (p. 262, A. p. 499) : “It is defendants’ final contention that, if it had been intended to continue the county office employes in their positions until they were given the opportunity to qualify by test, there would at least have been a provision that they could meanwhile be removed for cause. Such a provision, however, was unnecessary since it is implicit in every relationship of employer and employe that if the latter violates the conditions of his employment, and fails to render efficient service, the employment may he terminated as in the case of any other failure of a party to perform a contractual obligation.” We reinstated the plaintiff Carrow in that ease because she was discharged by the Sheriff, admittedly without cause. Of course, the plaintiffs in the present cases, as defendants admit, could not be dismissed without cause but had to be retained in their positions until given the opportunity to qualify for permanent employment by taking the prescribed qualifying test. But this court did not hold — ■ indeed to have so held would have verged on the ridiculous — that if, while waiting for the qualifying test to be administered, an employe were guilty, for example, of stealing, or of not performing the duties for which he was being paid by the City, or for any other just cause, nevertheless he could not be discharged but must be given the test and, if he passed it, accepted as a permanent employe.

(2) I dissent because the majority opinion intimates throughout — indeed practically charges — that the Sheriff acted in bad faith in discharging these plaintiffs, — in other words, falsely pretended that there was just cause for their dismissal. These cases are be*332fore us purely on the pleadings, and, in the absence of a shred of testimony to warrant such an accusation, I fail to see how we can judicially ascribe bad faith to a public official. An “official act of a public official is presumed to have been performed in accordance with the law and in good faith and with a proper motive, i.e., for the purpose of promoting the public good and protecting the public interest”: Matson v. Margiotti, 371 Pa. 188, 198, 88 A. 2d 892, 897. In Glesenkamp v. City of Pittsburgh, 320 Pa. 219, 181 A. 763, we said (p. 223, A. p. 765) per Mr. Justice Maxey: “The relator attacks the good faith of the commission .... He claims the reclassification was a mere subterfuge to deprive him of his job. If there was bad faith in this matter the persons who exhibited it were the Mayor of Pittsburgh, the members of the Civil Service Commission, and the then city solicitor. The orderly administration of government requires that courts assume that persons holding responsible public positions act in good faith, until the contrary is clearly shown. As this court said in Com. v. Philadelphia, 232 Pa. 5, 81 A. 59, ‘we start with the presumption of good faith in the performance of public duties on the part of the commission.’ ” Citing this case we said, per Mr. Justice Drew in Commonwealth v. Dress, 354 Pa. 411, 414, 47 A. 2d 197, 199: “It was proper for the learned court below to presume that the District Attorney; a responsible officer of the Commonwealth, acting under oath and in discharge of his official duty, acted in good faith. To hold otherwise on such facts or lack of them, as we have here, would be to seriously interfere with the administration of justice :...”*

*333(3) I dissent because, although the complaints in these cases alleged that plaintiffs were discharged without just or proper cause, the answers denied this allegation, asserted that plaintiffs were dismissed for just and proper cause, and further, that, as already stated, they were guilty of insubordination and inefficient in the performance of their duties. It is such an established procedural rule that where judgment is asked for on the pleadings the allegations set forth in the answer must be taken to be true that I feel tempted to assert that the present violation of that rule is without precedent in our judicial history. What the court is now holding is that the allegations thus made are not to be accepted as true, but that, in spite of them, and in the absence of any testimony whatever, the dismissals were not, in fact, for the reasons stated, but, as the majority opinion undertakes to say, “an attempt to make possible the retention of the spoils system — ■ such dismissals being for purely political reasons.” I fail to find in the pleadings any justification, either in procedural or substantive law, for such a departure from all norms of judicial administration.

(á) I dissent because the majority opinion is apparently permeated with the idea, and rests largely upon the proposition, that even though there may have been just cause for dismissing these plaintiffs the dismissals were illegal because of a failure to specify the reasons therefor. I know of no law, statutory or otherwise, except of course where civil service provisions are applicable, that requires an employer, whether public or private, to give a detailed statement to an employe of the reasons for his discharge. If the dismissal is actually unjustified and the employe has a contractual or other legal light to continue in his job the *334courts are open to Mm to vindicate Ms right; the controlling question is whether proper cause for his dismissal existed and not whether the reason for it was expressly explained to him. The majority opinion states that these dismissals constituted “a violation of fundamental justice” and cites as authority in support of that sweeping proposition Bagg’s Case, [1625] -11 Coke Rep. 93b, 77 Eng. Rep. 1271, which is wholly inapposite because it did not relate to a case of employment at all but to a proceeding to disfranchise a citizen. Indeed not a single one of the other cases cited in the majority opinion deals with employer or employe, but only with the removal from office of a public official, which is quite a different matter and has no bearing whatever on the present issue. The only feature in Bagg’s Case which is here relevant is that the court there said, as quoted in the majority opinion: “He who decides any matter without hearing both sides, though his decision is just, is himself unjust.” Ironically enough, our court is now doing the very thing thus condemned, and violating the very principle which the majority opinion thus holds up for emulation; it is deciding a matter “without hearing both sides”) it is denying a hearing to the defendant Sheriff, — the right to establish the truth of his allegation that there was in fact just cause for the dismissal of these plaintiffs.

(5) I dissent because the majority opinion states that the dismissals were a violation of “the rights given them [the plaintiffs] by the Charter.” What rights? The only right plaintiffs and all similar employees had was the right to be retained in their positions until given a test to qualify for entrance into the permanent civil service, but neither in the charter nor anywhere else were they accorded any right to be immune from dismissal meanwhile for cause. What the piresent decision really amounts to is a grant to plain*335tiffs of the rights secured by the civil service regulations before they have attained a civil service status, and which, if it be ultimately found that they did give just cause for dismissal, they have precluded themselves from attaining at all. Not being under civil service regulations they cannot avail themselves of the provision of the Civil Service Commission that the appointing authority must notify the employe of the reason for his dismissal. Indeed, were they under the aegis of those regulations their present actions of mandamus could not, in any event, be maintained since the Charter provides that if an employe is improperly dismissed his recourse must be by an appeal to the Civil Service Commission, and only from the decision of that Commission, if unfavorable to plaintiffs, could they appeal to the court.

To summarize, therefore- — because the assertion in the answers filed on behalf of defendants that plaintiffs were discharged for causes therein specified must be accepted as true on motions for judgments on the pleadings; and because (except under civil service regulations, to the benefit of which plaintiffs had not become entitled) there is no law making the dismissal of an employe illegal if not accompanied by a statement of the reasons therefor; and because I believe that the present decision of the court is therefore wholly unwarranted from the standpoint both of procedural and substantive law, I respectfully dissent from the present affirmance of the judgments of the court below.

Mr. Justice Jones joins in this dissenting opinion.

To the same effect: Fleming v. Adamson, 321 Pa. 28, 37, 182 A. 518, 522; McIntosh Road Materials Co. v. Woolworth, Secretary of Property and Supplies, 365 Pa. 190, 211, 212, 74 A. 2d 384, 394; Tremont Township School District Appeal, 366 Pa. 404, 409, 77 A. *3332d 403, 406; Miller v. Stoudnour, 148 Pa. Superior Ct. 567, 570, 26 A. 2d 113, 114.