Opinion
Argued May 7, 1979
September 13, 1979.
Policemen and firemen — Reduction in force — Economy — Act of 1933, May 31, P.L. 1108 — The Third Class City Code, Act 1931, June 23, P.L. 932.
1. The Act of 1933, May 31, P.L. 1108, authorizes a third class city to reduce the number of its firemen for economy reasons without enactment of an ordinance for that purpose, and the procedures for such a reduction in force established therein are exclusive and are not affected by provisions of The Third Class City Code, Act 1931, June 23, P.L. 932. [630-1-2]
Argued May 7, 1979, before Judges CRUMLISH, JR., MERCER and ROGERS, sitting as a panel of three.
Appeal, No. 906 C.D. 1978, from the Order of the Court of Common Pleas of Washington County in case of Walter Linn Brookman and Daniel E. Morris, for themselves and all others similarly situated v. Michael Johns, Suzanne Gomez and Leo Trisch, No. 7380, Bk. 43, Pg. 273.
Complaint in equity in the Court of Common Pleas of Washington County to enjoin termination of employment. Defendants filed preliminary objections. Preliminary objections sustained. Complaint dismissed. GLADDEN, J. Plaintiffs appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Regis J. McNally, for appellants.
William A. Mitchell, with him Hanna, Mitchell Mitchell, for appellees.
This appeal presents to us a single issue which can be succinctly stated: Can a third class city reduce the number of firemen for economy reasons without enacting an ordinance to provide for such reduction?
On March 13, 1978, the Washington City Council voted to lay off, for economy reasons, three men within the fire department, and, on March 27, 1978, the employment of three firemen was terminated. There is no disagreement that these three firemen are the proper persons whose employment would be terminated if Section 11 of the Act of May 31, 1933, P.L. 1108, as amended (Firemen's Civil Service Act), 53 P. S. § 39871, is applicable. The Firemen's Civil Service
The pertinent part of Section 11 of the Firemen's Civil Service Act reads as follows:
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.
Second. If the number of paid firemen, fire alarm operators and fire box inspectors eligible for retirement under the pension fund of said city, if any, is insufficient to effect the reduction in number desired by said city, or if there is no eligible person for retirement, or if no pension fund exists in said city, then the reduction shall be effected by suspending the last man or men, including probationers, that have been appointed. Such removal shall be accomplished by suspending in numerical order, commencing with the last man appointed, all recent appointees until such reduction shall have been accomplished.
Act establishes the exclusive procedure when a reduction in the number of personnel in the city fire department is contemplated. See Genes v. City of Duquesne, 27 Pa. Commw. 620, 367 A.2d 327 (1976).
Section 17 of the Firemen's Civil Service Act, 53 P. S. § 39877, reads as follows:
All acts and parts of acts, general, special or local, inconsistent with this act are hereby repealed. It is the purpose of this act to furnish a complete and exclusive system for the appointment, promotion, reduction, removal and reinstatement of all officers, firemen, or other employees of fire departments, and of all fire alarm operators and fire box inspectors in the bureaus of electricity, in all cities of the . . . third class wherein such officers and employees are paid.
However, the appellants here, members of the Washington City Fire Department, contend that the ordinance requirement set forth in Section 902 of The Third Class City Code, Act of June 23, 1931, P.L. 932, as amended, 53 P. S. § 35902,, is to be read in pari materia with Section 11 of the Firemen's Civil Service Act. We have studied the two acts in question and must conclude, as did the Court of Common Pleas of Washington County, that the Firemen's Civil Service Act removed firemen from the provisions of The Third Class City Code and established a separate civil service system for firemen.
The pertinent part of Section 902 of The Third Class City Code reads as follows:
Council shall prescribe, by ordinance, the number, duties, and compensation of the officers and employes of the city.
Section 11 of the Firemen's Civil Service Act permits reduction of firemen for reasons of economy and sets forth a procedure to follow. We are of the view that the reduction of fire personnel in a third class city is governed exclusively by Section 11, which need not be read in pari materia with Section 902 of The Third Class City Code and does not stand in need of the passage of an ordinance.
Since the appellees here complied with the requirements of Section 11 of the Firemen's Civil Service Act, the court below properly sustained preliminary objections in the nature of a demurrer and dismissed appellants' complaint in equity.
Order affirmed.
ORDER
AND NOW, this 13th day of September, 1979, the order of the Court of Common Pleas of Washington County, dated April 4, 1978, sustaining the preliminary objections of Michael Johns, Suzanne Gomez, and Leo Trisch, in the nature of a demurrer, and dismissing the complaint in equity of Walter Linn Brookman and Daniel E. Morris, for themselves and all others similarly situated, is hereby affirmed.
The caption to this appeal spells "Trisch" as "Trich".