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SCHWARTZ CASE (03/23/71)

decided: March 23, 1971.

SCHWARTZ CASE


Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1966, No. 3255 (Docketed January T., 1969, No. 466), in the matter of Donald Schwartz.

COUNSEL

Matthew W. Bullock, Jr., First Deputy City Solicitor, with him Levy Anderson, City Solicitor, for City of Philadelphia, appellant.

Jerome J. Shestack, with him Peter S. Greenberg, and Schnader, Harrison, Segal & Lewis, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Montgomery, J. Dissenting Opinion by Hoffman, J. Jacobs, J., joins in this dissenting opinion.

Author: Montgomery

[ 219 Pa. Super. Page 246]

The history of this case dates from June 8, 1963, when the appellee, Donald Schwartz, then occupying the position of Property Assessment Aide (Real) in the office of the Board of Revision of Taxes, took a civil service examination for promotion to the position of Real Property Assessor I. Having been certified as successfully passing the examination, his name was placed on the list of persons awaiting promotion for that position.

Later, on April 15, 1964, Louis Singer, a fellow employee who had taken the same examination at the

[ 219 Pa. Super. Page 247]

    same time, complained to the Personnel Director, under whose supervision the examination had been given, that he had seen Schwartz cheating during the examination by copying answers from the paper of the man who had sat in front of him at that time. As a result of that complaint and pursuant to Civil Service Regulation No. 9.163, the Personnel Director commenced an investigation which involved taking testimony, granting Schwartz a hearing, and affording him an opportunity to take a re-examination. Schwartz rejected the offer of a re-examination, and sought an injunction to prevent the Personnel Director from taking this action, which effort was ultimately nullified by our Supreme Court. Schwartz v. Tate, 419 Pa. 593, 215 A.2d 616 (1966). On March 3, 1966, the Personnel Director wrote a letter, quoted below,*fn1 which was forwarded to Schwartz, along with a three-page report of his investigation, containing, inter alia, the statement, "Under the circumstances, the similarity of the examination papers, along with the sworn statement of an eyewitness that he saw the actual cheating, compel the Personnel

[ 219 Pa. Super. Page 248]

Director to conclude that the conscientious performance of his function requires that he find that Mr. Schwartz was guilty of the cheating on the civil service examination held on June 8, 1963. Such cheating by its very nature was willful. Under Sections 9.1611 and 9.1621 of the Civil Service Regulations, the Personnel Director has no alternative but to separate Mr. Schwartz from municipal service and to hold him ineligible therefrom for a period five years." Thereafter an appeal was taken by Schwartz from that action to the Civil Service Commission, which affirmed it. Schwartz appealed to the Common Pleas Court from that order of affirmance; and, as a result of same, Hon. Stanley Greenberg, Judge, ordered and directed that the Civil Service Commission ". . . hold a new hearing on petitioner's appeal to the Commission from his dismissal as a City employee." No reason appears in the record for this action.

Following a complete rehearing the Commission again affirmed the dismissal and Schwartz again appealed to the Court of Common Pleas, which, again acting through Judge Greenberg, reversed and ordered Schwartz reinstated as of the date of his dismissal, with back pay and all rights and privileges pertaining to his employment. This action of the court below was based on the record as presented to it on appeal, without additional evidence; and the sole reason assigned by it in support of such action was that the Personnel Director lacked authority to dismiss Schwartz, since the appointing authority was the Board of Revision of Taxes. In support thereof the court cited Sections 7-201*fn2 and 7-303*fn3 of the Philadelphia Home Rule Charter.

[ 219 Pa. Super. Page 249]

Neither the finding of the Personnel Director that Schwartz had cheated on the examination, nor the finding of the Commission that the Personnel Director had not abused his discretion in making that determination and dismissing Schwartz for that reason, were disturbed by the lower court. This appeal by the City followed.

The primary question, therefore, is whether the lower court, for the reason that the Personnel Director did not have the authority to dismiss Schwartz from

[ 219 Pa. Super. Page 250]

    his position as Property Assessment Aide (Real) in the office of the Board of Tax Revision, erred in reversing the Board's action.

The lower court assumed and both parties agree that the Board of Revision of Taxes is Schwartz's appointing authority insofar as the applicable provisions of the Home Rule Charter are concerned. But based on that assumption, Schwartz argues that, since his appointing authority did not dismiss him, then ...


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