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WALSH v. TATE ET AL. (10/12/71)

decided: October 12, 1971.

WALSH
v.
TATE ET AL., APPELLANTS



Appeal from decree of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1970, No. 4707, in case of John E. Walsh, Jr., Register of Wills and John J. O'Grady, First Deputy, Register of Wills and Gene P. Lenart, Record Custodian Supervisor, Register of Wills v. James H. J. Tate, Mayor, and Romanus J. Buckley, Director of Finance, and Tom Gola, City Controller, and Philip M. Poorman, City Treasurer.

COUNSEL

Levy Anderson, City Solicitor, with him John M. McNally, Jr., First Deputy City Solicitor, for appellants.

Harry P. Begier, Jr., Solicitor to the Register of Wills, for appellee.

Bell, C. J., Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell and Mr. Justice Eagen concur in the result. Mr. Justice Jones took no part in the consideration or decision of this case.

Author: Roberts

[ 444 Pa. Page 230]

In Lennox v. Clark, 372 Pa. 355, 93 A.2d 834 (1953), this Court interpreted the 1951 City-County Consolidation Amendment of the Pennsylvania Constitution*fn1 and held, inter alia, that the office of the Register of Wills of Philadelphia was unaffected by the amendment and hence not subject to the Philadelphia Home Rule Charter. Today we are called upon to decide

[ 444 Pa. Page 231]

    whether the Register of Wills is now a city office subject to the Charter by virtue of certain 1968 amendments to the Pennsylvania Constitution. We hold that it is not.

The facts giving rise to this appeal are not in dispute.

On March 18, 1959, John E. Walsh, Jr. was appointed to fill the position of Philadelphia Register of Wills. He was elected to that office in November of the same year and re-elected in 1963 and again in 1967 to successive four year terms. In July of 1970, Walsh made several personnel changes in his office. J. Vincent McGrath was demoted from First to Second Deputy; Ernest De Angelo was demoted from Second Deputy to Clerk II; John O'Grady was appointed First Deputy; Gene Lenart was named to the then vacant position of Record Custodian Supervisor; and Mary Burak was dismissed from the position of Clerk II. These demotions and dismissals were admittedly without cause.

Also in July of 1970, the Philadelphia City Solicitor issued a Formal Opinion concluding that the Register of Wills became a city office as a result of the 1968 state constitutional amendments, and in light of the Solicitor's opinion the City maintained that Walsh's personnel changes violated the Home Rule Charter which prohibits the dismissal of city employees until they have had a reasonable opportunity to take and pass a civil service qualifying examination. Accordingly, the City refused to pay the salaries of O'Grady and Lenart and continued to pay the salaries of McGrath, De Angelo and Burak.

On July 31, 1970, Walsh, O'Grady and Lenart instituted an action in equity seeking to enjoin the City*fn2

[ 444 Pa. Page 232]

    from applying the Home Rule Charter to the office of the Register of Wills. The City answered and interposed a counterclaim praying for an order directing the Register to comply with the Charter. There being no issue of material fact, the case was heard and decided upon cross-motions for summary judgments. On October 30, 1970, the chancellor entered a decree nisi enjoining the City from attempting to apply the provisions of the Philadelphia Home Rule Charter to the office of Register of Wills, its personnel, functions or duties. It was further decreed that the City honor and accept the appointments, transfers and discharges made by Walsh and pay the salaries of his employees at the rates and for the time periods certified by him or his duly authorized representative. The decree was made final by stipulation on November 13, 1970, and this appeal ensued.

In understanding this controversy, it is helpful to begin by putting the issues in historical perspective. Shortly after the adoption of the City-County Consolidation Amendment of 1951, a dispute arose as to its effect upon the officers and employees of the former Philadelphia County offices of Sheriff, County Commissioner, Recorder of Deeds, Clerk of the Court of Oyer and Terminer and Quarter Sessions of the Peace, Coroner, Board of Revision of Taxes, Registration Commission, Prothonotary of the Court of Common Pleas, and Register of Wills. The legal questions involved centered upon the meaning of clauses (1), (6) and (7) of Article XIV, Section 8, of the Consolidation Amendment which provided respectively:

"(1) In Philadelphia all county offices are hereby abolished, and the city shall henceforth perform all functions of county government within its area through

[ 444 Pa. Page 233]

    officers selected in such manner as may ...


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