Commonwealth ex rel. v. Philadelphia ( 1922 )

Opinion by

Mr. Justice Sadler,

The relator, Frank Remmlein, was appointed in 1916 chief engineer of the Lardner’s Point Pumping Station, in the City of Philadelphia, after examination by the Civil Service Commission, and continued in this employment until 1920. On September 8th of that year, the chief of the water bureau recommended to the director of public works that he be discharged for many good and sufficient reasons. A copy of the complaint was duly served on September 11th, with the request that an answer to the charges be filed within five days. On the 22d an answer was forwarded in which many of the derelictions set forth were denied; the correctness of some was admitted, with the explanation that the failure to perform was due to matters over which he had no control, and it was also claimed that his suggested removal was for political reasons. Prior to the filing of this answer, more than five days having elapsed, Remmlein was formally notified of his discharge. Later, a request for reinstatement was made, and the refusal to so order was followed by a petition for a writ of alternative mandamus. The city moved to dismiss the application, averring no legal reason had been advanced which would justify the requested order. The court below, declining to quash the writ, directed that an answer be filed and this was done within the time fixed. The return was traversed by the petitioner, and issue was joined.

The learned court below entered judgment for the plaintiff on the pleadings, though no demurrer to the answer had been filed. It was of the opinion that Remmlein could not be dismissed from service without a hearing by the Civil Service Commission, as provided in the second paragraph of section 18, article XIX, of the Charter Act (June 25, 1919, P. L. 581). In so holding, the fact was overlooked that such procedure is required only in the case of firemen and policemen, and the relator was not employed in such work. He was in the classified service, as defined by the statute (Act of 1919, article XIX), and could be removed from his position in the way therein provided. Section 18 directs: “No officer, clerk, or employee in the classified civil service of such city shall be removed, discharged, or reduced in pay or position, except for just cause, which shall not be religious or political. Further, no such officer, clerk or employee shall be removed, discharged or reduced, except during the probationary period until he shall have been furnished with a written statement of the reasons for such action and been allowed to give the removing officer such written answer as the person sought to be removed may desire.” It is to be noted that no provision is made for formal hearing on the charges preferred, though police or firemen may demand this by the terms of the 2d paragraph of the same section.

The legislature has ample authority to determine the manner in which city employees may 'be removed (Duffy v. Cooke, 239 Pa. 427; Com. v. Black, 201 Pa. 433), and it has undertaken to fix the procedure to be followed. Subject to the limitations expressly imposed (Truitt v. Phila., 221 Pa. 331), the proper executive officers may discharge. All that is necessary, except in certain specified cases, is due notice of the charges made, with the opportunity to answer within five days, followed by the filing with the Civil Service Commission of copies of the written statement, with the reply: Com. v. Phila., 232 Pa. 5. “What constitutes ample cause for removal within the limits fixed by the act must necessarily be largely a matter of discretion on the part of the head of the department. To be sufficient, however, the cause should be personal to the employee and such as to render Mm unfit for the position he occupies, thus making Ms dismissal justifiable and for the good of the service”: Thomas v. Connell, 264 Pa. 242, 246.

The specifications of misconduct in the present case fully justify the director in dismissing the relator. Though he now insists upon the right to a hearing, — a privilege not granted by the legislation applicable to Ms case, as we have shown, — yet no averment is made that he has at any time asked for an investigation by the Civil Service Commission, and it appears he did not even reply to the director of public works within the time fixed by the act. The legislature has seen fit to vest the exclusive decision as to dismissal of the classified employee, — other than police or firemen, — in the head of the department; the power to determine the merits of the charges specified is lodged in him, and, in the present case, the action taken cannot be properly criticised. “All that the appellee had the right to under this section is that the cause assigned shall be a just one, not religious or political, and the reasons given in this case are ample, if true, to justify the [dismissal]. Neither the court below nor this court is charged with an inquiry into the truth or falsity of the cause alleged”: McCoach v. Phila., opinion handed down herewith [the preceding case].

Counsel for the appellee frankly admit the court below was in error in the reason given for its decision, but insist that the judgment should be affirmed on another ground. Section 16 of the Charter Act expressly provided that removals may not be had '‘because of [the employee’s] political or religious opinions or affiliations,” and section 18 expresses the same thought. In the answer filed by Remmlein, and transmitted to the director, as well as in the petition for the writ of alternative mandamus, it is averred that he was dismissed for political reasons, — a fact denied by the reply filed by the city. An examination of the complaints of inefficiency made by the director shows the relator’s averment to be untrue. Failure to perform the duties of his office, in many particulars, furnished ample reason for the dismissal. An intolerable situation would arise, should it be held that a mere allegation of religious or political prejudice made necessary a court proceeding to determine the correctness of such an assertion, where charges of dereliction of official duty are fully set forth, which, if true, require the removal of the employee from his post. Such is the situation here.

The argument is now advanced that there is an admission by defendant that the discharge of plaintiff was for political reasons, and, therefore, the illegality of the removal is apparent, making necessary his reinstatement. It is contended the defendant failed to properly deny the allegation made in the petition, by omitting to plead, after traverse filed, and the court was therefore justified in entering judgment of nil dicit, or by default, with the result that the averments of the plaintiff are to be taken as true. If a defendant appears in such a proceeding, and fails to answer, such judgment may be entered (Act June 8, 1893, section 16, P. L. 346; 1 Troubat & Haley Practice, 6th ed., 491); but the court, in the present case, did not do this, nor could it have so acted, in view of the filing of the answer, which was subsequently traversed and issue joined. Appellant argues, however, that the second sentence of section 15 of the Mandamus Act (June 8, 1893, P. L. 346) requires a reply or plea to the traverse filed. Evidently the words as there used are intended to protect a defendant if an attempt is made to set up new matter therein, — a situation which does not appear in the present proceeding. That the joinder of issue is considered complete, under the circumstances as disclosed here, is shown by an examination of our cases: Roth v. East Connellsville Coke Co., 242 Pa. 23. Even if the contrary was true, the court could not proceed of its own motion to declare a default, but would, by rule or otherwise, require the defendant to file any further plea necessary. Though parties will not be forced to trial without formal joinder of issue, yet they may so proceed, if they elect, and the judgment entered subsequently will not, under such circumstances, be set aside: Beale v. Buchanan, 9 Pa. 123; Com. v. Warwick, 185 Pa. 623.

There was no admission under the pleadings, in the present case, that Remmlein was removed for political reasons. On the contrary, the specifications show the basis of the director’s action, and it was sufficient. “The matter was one for the appointing power alone, where, as here, there was a just cause stated, not religious or political, a written statement thereof given to the [relator] and he allowed to give a written answer thereto”: McCoach v. Phila., supra. If the fact alleged was controlling, — but we think it was unimportant in view of the many legal reasons appearing in the charges filed and acted upon by the director, — still the judgment could not be affirmed, for the filing of the traverse would have made necessary the disposition of the question by a jury: 26 Cyc. 470; 18 R. C. L. 347. Such course was not required at common law, but is now in Pennsylvania, as in other civil actions: Williamsport v. Water & Gas Co., 232 Pa. 232, 244; Kell v. Rudy, 1 Pa. Superior Ct. 507; 2 Spelling on Injunctions 1454. It is clear that the order made in this case cannot be sustained, and the judgment entered must be set aside.

The order granting the plaintiff’s petition for a writ of peremptory mandamus is reversed at the costs of the appellee.