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MORTIMER v. PHILADELPHIA CIVIL SERVICE COMMISSION. (03/14/55)

March 14, 1955

MORTIMER, APPELLANT,
v.
PHILADELPHIA CIVIL SERVICE COMMISSION.



Appeal, No. 291, Jan. T., 1954, from order of Court of Common Pleas No. 6 of Philadelphia County, Dec. T., 1953, No. 8531, in case of Albert T. Mortimer v. Civil Service Commission of Philadelphia. Order affirmed.

COUNSEL

Charles S. Schermer, with him Lemuel B. Schofield and Marvin Comisky, for appellant.

Murray L. Schwartz, Deputy City Solicitor, with him Harvey Levin, Deputy City Solicitor, Jerome J. Shestack, First Deputy City Solicitor, and Abraham L. Freedman, City Solicitor, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Jones

[ 380 Pa. Page 521]

OPINION BY MR. JUSTICE JONES

At a special election, held April 17, 1951, in pursuance of authority conferred by the First Class City Home Rule Act of 1949, P.L. 665, 53 PS ยง 3421.1 et seq., the electors of Philadelphia voted their approval of a Home Rule Charter for the City. According to the Charter's terms, its effective date for the most part was fixed as January 7, 1952. The narrow question raised on this appeal is as to which of these two dates - April 17, 1951, or January 7, 1952 - the framers of the Charter intended by use of the phrase "at the time of the adoption of this charter" in Section A-104. The question thus involved is purely one of law. The parties have entered into an agreed statement of facts in keeping with Rule 41 of this court.

Albert T. Mortimer, the appellant, after civil service test and certification, was appointed a patrolman by the City in 1931. On April 17, 1951, he held the rank of sergeant of detectives, having been promoted to that position in October, 1950, without a competitive examination. On September 8, 1951, he was again promoted without competitive examination to the rank of lieutenant of detectives which is the rank he held on January 7, 1952. During 1952 the positions in the police department were reclassified and the rank of lieutenant of detectives became that of police captain. Mortimer thereafter took a qualifying test for the rank of police captain. His paper was scored only on the basis of his qualifications for the rank of police sergeant, the reclassified equivalent of sergeant of detectives, which was the rank held by him on April 17, 1951. On June 1, 1953, Mortimer was temporarily assigned as a police lieutenant, and, on June 16th, he was likewise assigned as a provisional police captain. He served in that position until March 8, 1954, when he was reassigned to the permanent rank of police Sargent.

[ 380 Pa. Page 522]

Mortimer appealed this reassignment to the Civil Service Commission which dismissed his appeal. An ensuing appeal to the Common Pleas of Philadelphia County was dismissed in an order from which Mortimer took the instant appeal.

The material factual situation is that Mortimer was a sergeant of detectives (now denominated police sergeant) on April 17, 1951, when the electors of Philadelphia approved the Charter and was a lieutenant of detectives (now denominated police captain) on January 7, 1952, the generally effective date of the Charter. The question of which rank Mortimer is entitled to hold depends entirely upon when the Home Rule Charter was "adopted". Section A-104 of the Charter provides, inter alia, that "Employees of the City at the time of the adoption of this charter... who were not appointed after civil service test and certification shall also be continued in their respective positions provided that within one year after this charter takes effect... they pass a qualifying test ..." (Emphasis supplied).

There is no dispute that Mortimer is entitled, as a result of his qualifying test, to retain his position of police sergeant. He asserts, however, that he is entitled to take a qualifying test for the rank of police captain (the equivalent of former lieutenant of detectives), contending that the Charter was not "adopted" until it became generally effective on January 7, 1952, and that he is entitled to qualify for the rank held by him on that date. The appellant's contentions are patently untenable.

Given its common and ordinary meaning, as a cardinal rule of construction requires, the precise language of the Charter irresistibly compels the conclusion that its framers used the terms "adoption" and "effective date" of the Charter ...


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