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PURCELL ET AL. v. ALTOONA ET AL. (03/20/50)

March 20, 1950

PURCELL ET AL., APPELLANTS,
v.
ALTOONA ET AL.



Appeal, No. 50, Jan. T., 1950, from judgment of Court of Common Pleas of Blair County, Oct. T., 1947, No. 188 in case of Andrew J. Purcell et al. v. The City of Altoona et al. Judgment affirmed.

COUNSEL

Robert C. Haberstroh, for appellants.

Paul E. Beaver, City Solicitor of Altoona, for appellees.

Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.

Author: Drew

[ 364 Pa. Page 397]

OPINION BY Mr. Justice DREW

Six paid employes of the Fire Department of Altoona, a city of the third class, instituted these proceedings for a writ of alternative mandamus to compel

[ 364 Pa. Page 398]

    the officials of that municipality to comply with the provisions of the Civil Service Act of May 31, 1933, P.L. 1108, and the Veterans Preference Act of May 22, 1945, P.L. 837. They further ask that certain rulings of the city officials during the last war be declared contrary to the Civil Service Act of 1933 and so invalid. From a judgment refusing their petition, all six plaintiffs have brought this appeal.*fn1

On January 21, 1943, the City Council of Altoona adopted a resolution recognizing the existence of a state of emergency caused by the war in which this country was then engaged and suspending the Civil Service Act of 1933, insofar as it applied to appointments. From that time until November 8, 1946, when a further resolution was passed declaring the 1943 resolution no longer applicable, all appointments to the fire department were made on a temporary basis.

Two plaintiffs, Purcell and Books, maintain that, even though an emergency existed, defendants did not have authority to suspend the Civil Service Act of 1933, that it has continued in force and that they are entitled to the benefits which accrued therefrom. Purcell was certified from the Civil Service list of February 6, 1941, and at that time was given a permanent position as hoseman. In the early part of 1947, shortly after defendants reinstated the Civil Service Act of 1933, promotions were made from hoseman to driver, based on the eligibility list of 1942. Purcell was not on that list, inasmuch as he had not held his permanent position of hoseman for the requisite period of two years at the time that list was prepared. He contends, however, that had Civil Service not been improperly suspended from January 21, 1943, to November 8, 1946, the 1942 list

[ 364 Pa. Page 399]

    would have lapsed after two years, and a new examination would have been given, for which he ...


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