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WHISTED v. PHILADELPHIA. (05/21/56)

May 21, 1956

WHISTED, APPELLANT,
v.
PHILADELPHIA.



Appeal, No. 103, Jan. T., 1956, from decree of Court of Common Pleas No. 1 of Philadelphia County, Dec. T., 1954, No. 3352, in case of Robert T. Whisted, Raymond Cohen et al. v. City of Philadelphia, Joseph Sill Clark, Jr., Mayor, Donald C. Wagner et al. Decree affirmed.

COUNSEL

William J. O'Brien, for appellants.

Richard H. Markowitz, Assistant City Solicitor, with him James L. Stern, Deputy City Solicitor, David Berger, City Solicitor, and Murray L. Schwartz, First Deputy City Solicitor, for appellees.

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

Author: Chidsey

[ 385 Pa. Page 214]

OPINION BY MR. JUSTICE CHIDSEY

This is an appeal from the final decree of the Court of Common Pleas No. 1 of Philadelphia County dismissing plaintiffs' complaint in equity.

Plaintiffs, with the exception of Dennis S. Welsh who is President of Local 30, Government and Civic Employees Organizing Committee, C.I.O., are employes of the City of Philadelphia in the Department of Licenses and Inspections. Reference to plaintiffs collectively hereinafter excludes plaintiff Welsh. Prior to January 1, 1953 plaintiffs were classified as Housing and Sanitation Inspectors in the civil service of the City of Philadelphia with inspection duties in housing and sanitation only. On January 1, 1953, the classification of plaintiffs was changed to Field Inspectors II by the Personnel Department of the City of Philadelphia pursuant to Section 7-401(a) of the Home Rule Charter. The definition of the position of Field Inspector II, as set forth in the Position Classification Plan of the City of Philadelphia, provides that an employe in this class is responsible "... for a specific type of field inspection ...". During 1953, in accordance with Section 5-1002(c) of the Charter, the Department of Licenses and Inspections consolidated the inspectional functions in the housing, sanitation and fire fields so that inspections in all fields could be performed by a single inspector rather than by one inspector for each field. Prior to this consolidation of inspectional functions, plaintiffs had never made inspections

[ 385 Pa. Page 215]

    of violations of the Fire Prevention Code and had never filed reports on fire hazards in housing accommodations or in commercial or industrial buildings but after the consolidation plaintiffs were given new duties and responsibilities relating to inspections for violations of the Fire Prevention Code in addition to the investigation of sanitary conditions and the maintenance of legal housing standards. Subsequent to the consolidation of inspectional functions, plaintiffs, by plaintiff Dennis S. Welsh, wrote to the Chief of the Re-Classification Division of the Personnel Department of the City of Philadelphia on behalf of the employes involved, appealing for an amendment to the classification and pay plans in regard to the position of Field Inspector II, on the ground of "... the increased duties and additional knowledge required to perform the functions of the position through the consolidation of the three services, namely, Sanitation, Fire Prevention and Housing.". Plaintiffs then filed a formal application with the Personnel Department to increase their pay scale on the ground "... that Housing Inspectors and Fire Inspectors, who previously had been doing inspections only in their individual fields have been combined and consolidated, so that one man now carries out the inspectional functions of both divisions.". The Personnel Department first recommended a denial of plaintiffs' appeal, but after an investigation of plaintiffs' positions to determine the exact nature of their job duties, the Personnel Department recommended to the Civil Service Commission that a new classification of Housing and Fire Inspector at a higher pay range be established to reflect the increased variety and responsibility of plaintiffs' work. The new classification of Housing and Fire Inspector was accordingly established by the Civil Service Commission.

[ 385 Pa. Page 216]

Section 7-401(e) of the Charter provides that job vacancies shall be filled by promotion whenever possible and promotion shall be on a competitive basis except where the Personnel Director with the approval of the Civil Service Commission finds that competition is impracticable. Regulation 13.01 of the Philadelphia Civil Service Regulations provides: "Promotion. Unless vacancies shall be filled by demotion, transfer, reinstatement, or by certification from preferred or layoff eligible lists, they shall be filled so far as practicable by the promotion of employees in the service. The Director shall, in each case, after consultation with departmental representatives of the various departments concerned, determine whether or not an open competitive examination shall be held or whether a promotional examination shall be conducted among the eligible employees of the department or departments in which vacancies exist. ...". Pursuant to the above provisions, plaintiffs were notified that they would be required to take a promotional examination to qualify for the position of Housing and Fire Inspector. Plaintiffs then brought this action in equity to enjoin defendants from requiring them to take the examination, and to compel defendants to grant them permanent status as Housing and Fire Inspectors without competitive examinations. The lower court, after hearing testimony, dismissed plaintiffs' bill of ...


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