GENES v. City of Duquesne

Opinion by Judge Kramer, Louis Genes, 1 Edward Hunt, Anthony Pastriek and Robert Terza, veteran firemen, 2 were removed from their positions of City employment for asserted reasons of economy. They sought and were granted a hearing before the City’s Civil Service Commission which upheld their removal. The firemen appealed the Commission’s decision to the Court of Common Pleas of Allegheny County. The Court of Common Pleas affirmed the Commission’s action, by order without opinion; and the firemen have appealed the court’s order to this Court. The firemen contended before the Commission and the court below and still assert (1) that they were not removed for reasons of economy as permitted by Section 11 of the Act of May 31,1933 (Act), P.L. 1108, as amended, 53 P.S. §39871, and (2) that their removal was politically motivated in violation of Section 10 of the Act, 53 P.S. §39870. *622 Section 11 reads pertinently: If for reasons of economy, or other reasons, it shall be deemed necessary by any city to reduce the number of paid members of any fire department, or the number of fire alarm operators or fire box inspectors in the bureau of electricity, then such city shall follow the following procedure: First. If there are any paid firemen, fire alarm operators or fire box inspectors eligible for retirement under the terms of any pension fund, then such reduction in numbers shall be made by retirement on pension of all the oldest in age and service. Section 10 provides, inter alia, that a fireman may not be removed except for good cause, which shall not be political. Section 12, 53 P.S. §39872, although not expressly relied upon by the appellants, provides a definition of political cause by its prohibition of discrimination against some employees, including firemen, because of their “political opinions or affiliations.” We discover by reviewing the record that the appellants are four of a total of 14 employees removed from City employment at a savings to the City of $131,000; an amount equal to about nine percent of the City’s annual budget and hence clearly substantial. The firemen, nevertheless, contend that indications in the record that (1) the City of Duquesne was not in a condition of fiscal distress when they were removed, (2) the money saved by their removal was spent for other purposes, and (3) the City’s tax rate was decreased by only one mill, prove the falsity of the asserted economic basis for their removal. We disagree. The appellants put too narrow a construction on the phrase “for reasons of economy” and ignore the phrase “or other reasons,” immediately fol *623 lowing, in Section 11. “Reasons of economy” would include, in our judgment, a saving of money by tbe removal of unneeded employees, regardless of the financial condition of tbe City. Tbe phrase “for . . . other reasons” would authorize tbe removal of unneeded employees for reasons other than that of effecting fiscal economics, such as, to improve efficiency. It is significant that before removing tbe appellants tbe City obtained tbe opinion of experts in tbe field of firefighting that tbe reduction in tbe firefighting force resulting from tbe appellants’ removal would not adversely affect fire protection. Tbe appellants’ contention that they were removed for political reasons is also founded on a misconstruction of tbe statute. Section 10 of tbe Act prohibits removal for political cause, and Section 12 forbids discrimination because of tbe political opinions and affiliations of tbe employee. Tbe appellants’ evidence on this issue consisted of tbe fact that tbe Mayor and two councilmen bad run for office on a promise to reduce taxes, which promise tbe appellants say was kept by removing them from their positions of employment. Tbe charge made is not that tbe appellants were discriminated against because of their political opinions or affiliations but that they bad become tbe means of fulfilling other persons’ promises made in a political campaign. Tbe latter was not what tbe Legislature bad in mind in forbidding removal for political reasons or because of political opinions or affiliations. Our scope of review in this class of case is narrow: [W]hen, as here, tbe lower court has not held a bearing de novo, we have held that our scope of review is limited to a determination of whether or not (1) tbe constitutional rights of tbe appellant were violated by tbe Commission or (2) tbe Com *624 mission manifestly abused its discretion or committed an error of law, and (3) the findings of fact made by the Commission are supported by substantial evidence. Fitzgerald v. Civil Service Commission of The City of Philadelphia, 16 Pa. Commonwealth Ct. 540, 543, 330 A.2d 285, 286 (1974). The findings of fact made by the Commission on both points raised by the appellants are supported by substantial evidence in the record. Having concluded that the appeals must fail, it is unnecessary to discuss the City’s attenuated argument in support of its statement that the appeals to the court below were untimely made, beyond declaring that it is in our opinion without merit because Section 10 of the Act, 53 P.S. §39870, provides the remedy for firemen removed pursuant to Section 11. Order And Now, this 17th day of December, 1976, the order of the Court of Common Pleas of Allegheny County made July 11, 1975 is affirmed. Footnotes [1] Mr. Genes died during tbe proceedings and the Administratrix of his estate was substituted on the record. [2] None of the four was younger than 58, and one was 64 years of age. All were eligible for retirement under the terms of the City’s pension fund.