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TATE v. ANTOSH (08/30/71)

decided: August 30, 1971.


Appeals from the orders of the Court of Common Pleas of Philadelphia County, Nos. 3264, 3270, 3271, and 3434 January Term 1971 in cases of Louis Antosh, et al. v. James H. J. Tate, Mayor of Philadelphia, et al.; Mario Monacello, et al. v. Honorable James H. J. Tate, Mayor of Philadelphia, et al.; Mario Monacello, et al. v. City of Philadelphia, et al.; District Council 33 of the American Federation of State, County and Municipal Employes, AFL-CIO by its President and Trustees ad litem, Earl Reed, Betty Norman and Horace Johnson v. City of Philadelphia, The Honorable James H. J. Tate, et al.


John M. McNally, Jr., First Deputy City Solicitor, with him Howard D. Scher, Assistant City Solicitor, John Mattioni, Deputy City Solicitor, and Levy Anderson, City Solicitor, for appellants.

Thomas F. McDevitt, for appellee firemen; Richard Kirschner, for appellee nonuniformed employees; Francis X. Nolan, for appellee policemen, with them Stanley Bashman and Donsky, Katz, Levin & Bashman.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer and Rogers. Opinion by President Judge Bowman.

Author: Bowman

[ 3 Pa. Commw. Page 146]

Although not so posed by the parties to these consolidated appeals, the fundamental issue is whether the judiciary -- to enforce an admitted obligation of the City of Philadelphia to certain of its employees -- may direct the legislative branch of the government of that city to appropriate funds to meet such obligations.

Prior decisional law makes solution of the issue difficult. Compounding the difficulty is the impact, if any, of recent legislation on the subject of labor relations

[ 3 Pa. Commw. Page 147]

    between public employees and their government employer.*fn1

The essential facts are not in dispute and, for the most part, have been stipulated. For the fiscal year July 1, 1970 to June 30, 1971, the City had appropriated $2,725,000*fn2 for disability payments to City employees who were or became eligible therefor as a result of service connected injury as prescribed by Civil Service Regulation 32.

In substance, this regulation provides that employees totally and permanently disabled shall receive full salary for three years; those permanently and partially disabled shall be placed in secondary positions and shall receive as supplemental pay the difference between the salary of the secondary position and that of their prior regular pay. Failure to cooperate fully with the job placement program or failure to accept or to continue in the employment offered shall limit the employee's receipt of benefits to a period of one year.

On January 15, 1971, when it became apparent that budgeted funds for payment of Regulation 32 benefits would soon become exhausted, eligible city employees were so notified in writing by the city personnel director based upon advice given to him by the finance director. The letter concluded that no payments would be made after the fund was exhausted.

This advice precipitated the suits in question which were filed on January 22, 1971. By complaint in equity the nonuniformed employees through their union sought judicial relief directing continuation of payments

[ 3 Pa. Commw. Page 148]

    to those eligible and the appropriation of the necessary funds to meet such payments. Similar complaints in equity were filed by the policemen and firemen and their unions. The policemen also filed a complaint in mandamus. In all actions, the Mayor of the City, sundry fiscal officers and the members of City Council are named defendants.

After hearing, the lower court entered orders enjoining defendants from discontinuing payments to eligible employees and directing them to appropriate funds for the purpose of financing such payments. These appeals followed incident to which this Court superseded the orders of the lower court.

Before the lower court and here, the City maintains a single position which it contends insulates the City against an action of any kind being asserted against it for the payment of Regulation 32 benefits to eligible city employees.

Citing O'Donnell v. Philadelphia, 385 Pa. 189, 122 A.2d 690 (1956) and Baxter v. Philadelphia, 385 Pa. 424, 123 A.2d 634 (1956) as controlling, it argues that the exhaustion of the appropriated funds for these purposes bars judicial remedy.

O'Donnell involved a declaratory judgment proceeding by a labor union and several city employees as a class suit to recover wages for work performed in excess of 40 hours each week during the year 1952; their claim rested partly on an ordinance and partly on a labor agreement, both of which reduced the work week from 48 to 40 hours with provision for overtime payment. However, upon adoption of the Home Rule Charter effective January 7, 1952, the Civil Service Commission, acting under authority of the Charter, reinstated the hours of work as those in force during 1951. The reduced work week, as provided by Ordinance and the labor agreement, was in effect for only a five day

[ 3 Pa. Commw. Page 149]

    interval and it was the overtime payments for this period which were the subject of the litigation. After concluding that the particular plaintiffs were not parties to the labor agreement in question, the Court proceeded to state: "[T]here is another and conclusive reason why the order of the lower court must be affirmed, this reason being that Council never made any appropriation to provide for overtime pay on the basis of a 40-hour week in pursuance of either the agreement or the ordinance, except partially for the Union members employed in the Department of Public Works. That there can be no recovery against the city in the absence of such an appropriation is so fundamental and so well established as to preclude the necessity of discussion. All the statutes relating to Philadelphia, such as the Act of April 21, 1858, P.L. 385, the Act of June 1, 1885, P.L. 37, and the Act of June 25, 1919, P.L. 581, provided, in varying phraseology, that 'no debt or contract shall be binding upon the City of Philadelphia unless . . . an appropriation sufficient to pay the same be previously made by the councils'; or that 'no liability shall be enforceable against the city by any action at law in equity or otherwise, upon any contract not supported by a previous appropriation of council.' The Home Rule Charter contains numerous sections -- for example, 6-104, 6-106, 6-400(a), and 8-200(3) -- to like effect. As for the decisional law on the subject, case after case has laid down the same rule, which was called by Judge Thayer ...

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