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O'GORMAN APPEAL. (01/21/63)

January 21, 1963

O'GORMAN APPEAL.


Appeal, No. 376, Jan. T., 1962, from order of Court of Common Pleas No. 1 of Philadelphia County, Dec. T., 1961, No. 178, in the matter of George B. O'Gorman. Order affirmed.

COUNSEL

C. Clark Hodgson, for appellant.

Levy Anderson, First Deputy City Solicitor, with him Matthew W. Bullock, Jr., Assistant City Solicitor, James L. Stern, Deputy City Solicitor, and David Berger, City Solicitor, for Civil Service Commission, appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Keim, JJ.

Author: O'brien

[ 409 Pa. Page 573]

OPINION BY MR. JUSTICE O'BRIEN

The appellant, Deputy Procurement Commissioner of the City of Philadelphia, was suspended and then, on June 3, 1961, discharged from his position by the Procurement Commissioner. The discharge was based on appellant's admitted acceptance of three gifts of $100 each from a representative of a firm doing business with the City. The gifts were accepted just prior to Christmas in each of the years 1958, 1959 and 1960.

An appeal from the dismissal was taken to the Philadelphia Civil Service Commission, which, after a hearing, sustained the suspension and dismissal. The action of the Commission was appealed to the court below, which dismissed the appeal, one judge dissenting. This appeal followed.

Appellant raises two issues: (1) he was not properly discharged because there was no showing of "just cause" for his discharge, and (2) his appeal to the Civil Service Commission was not "heard promptly", as required by the City Charter. The court below concluded that the appeal should be dismissed because Section 7-201 of the Philadelphia Home Rule Charter provides that "Findings and decisions of the Commission

[ 409 Pa. Page 574]

    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". Holding that appellant's appeal was "heard promptly" and finding no other "jurisdictional or procedural" error, the court below dismissed the appeal, although it conceded that if it "had the power to review this appeal upon the merits, [it] would take the position that appellant's faithful service as Deputy Procurement Commissioner and the entire absence of any venality in connection with the acceptance of the gifts under consideration should have saved him from the drastic action of dismissal from office, and that he could have been adequately disciplined by a suspension without pay for a period of time."

The scope of our review in this matter is limited to a hearing on "narrow certiorari": Deal v. Philadelphia Civil Service Comm., 405 Pa. 136, 173 A.2d 323 (1961); Addison Case, 385 Pa. 48, 122 A.2d 272 (1956). In Deal, supra, we quoted, with approval, the language of Kaufman Construction Co. v. Holcomb, 357 Pa. 514, 55 A.2d 534 (1947), wherein 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".

Appellant relies heavily on DeVito v. Civil Service Comm., 404 Pa. 354, 172 A.2d 161 (1961). In that case we recognized the general rule, above quoted from Kaufman, but stated two exceptions to it. We there held that the rule is inapplicable where: (1) "the administrative agency or lower ...


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