Appeals, Nos. 117 and 118, Jan. T., 1961, from orders of Court of Common Pleas No. 4 of Philadelphia County, Dec. T., 1959, Nos. 1709 and 1228, in cases of John Deal v. Civil Service Commission of the City of Philadelphia, and Thomas Newman v. Same. Orders reversed; reargument refused September 5, 1961.
James L. Stern, Deputy City Solicitor, with him Matthew W. Bullock, Jr. and Francis X. O'Brien, Assistant City Solicitors, and David Berger, City Solicitor, for Civil Service Commission, appellant.
William J. Woolston, with him Samuel Tabbey, and Bernard J. Lemisch, for appellees.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE BOK.
Appellees are both policemen who were dismissed by the Police Commissioner of Philadelphia for conduct unbecoming an officer. They were also variously indicted for conspiracy to extort and extortion, of which charges they were acquitted at their criminal trial. They were then given a hearing by the Civil Service Commission, and no one contends that this hearing lacked due process or that the Commission lacked jurisdiction. The Commission upheld the Police Commissioner and dismissed the officers' appeals. They then appealed to the court below, which reversed the decision of the Civil Service Commission and ordered the men restored to duty with full pay. The City has appealed.
We think that the court has confused jurisdictional and procedural requirements with the merits of the case.
Section 7-201 of the Philadelphia Home Rule Charter, concerning the Civil Service Commission, reads: "Findings and decisions of the Commission and any action taken in conformance therewith as a result thereof shall be final and there shall be no further appeal on the merits, but there may be an appeal to the courts on jurisdictional or procedural grounds."
This means that the court below and this court as well are limited to hearing these cases on narrow certiorari: Addison Case, 385 Pa. 48 (1956), 122 A.2d 272; Kaufman Construction Co. v. Holcomb, 357 Pa. 514 (1947), 55 A.2d 534. In the latter case we said: "... where a statute expressly provides that there shall be no appeal the scope of appellate review is limited to the question of jurisdiction and the regularity of the proceedings; the merits of the controversy cannot be considered even though the interpretation given to the facts or the law by the governmental agency or the court below may have been erroneous."
On an appeal under narrow certiorari neither the opinion nor the testimony of the decision on review should be considered: Bell Appeal, 396 Pa. 592 (1959), 152 A.2d 731.
As President Judge KELLER said in Heffernan's Appeal, 121 Pa. Superior Ct. 544 (1936), 184 A. 286, and quoted approvingly by us in Hellertown Borough Referendum Case, 354 Pa. 255 (1946), 47 A.2d 273: "'The test of jurisdiction is whether the court has the power to enter on the inquiry; not whether it can, in the circumstances here present,' grant what is asked for. 15 Corpus Juris, Sec. 35, p. 735 makes this statement: 'Such jurisdiction the court acquires by the act of its creation, and possesses inherently by its constitution; and it is not dependent upon ...