Appeal from order of Superior Court, Oct. T., 1970, No. 812, reversing the order of the Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1966, No. 3255, in the matter of Donald Schwartz.
Jerome J. Shestack, with him Schnader, Harrison, Segal & Lewis, for appellant.
S. Jay Sklar, Assistant City Solicitor, with him John Mattioni, Deputy City Solicitor, and Levy Anderson, City Solicitor, for City of Philadelphia, appellee.
Jones, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien. Mr. Chief Justice Bell and Mr. Justice Barbieri took no part in the consideration or decision of this case.
Appellant, Donald Schwartz, was an employee of the City of Philadelphia. He held the position of Property Assessment Aid (Real) in the office of the Board of Revision of Taxes. In June of 1963, he took a Civil Service Examination for promotion to the position of Real Property Assessor I. He passed the examination and was certified to the eligibility list for the Real Property Assessor I position and remained on the list awaiting promotion. However, prior to his being promoted to the new position, a fellow employee informed the City Personnel Director that Schwartz had cheated on the examination. Pursuant to the Philadelphia Civil Service Regulations, the Personnel Director made an investigation and afforded Schwartz an opportunity to take a re-examination, which opportunity he
rejected. He sought an injunction to prevent the Personnel Director from conducting this investigation, but was unsuccessful in a case which ultimately reached this Court. Schwartz v. Tate, 419 Pa. 593, 215 A.2d 616 (1966). Eventually, in 1966, the Personnel Director informed Schwartz that the investigation disclosed that he was guilty of cheating on the Civil Service Examination and that in accordance with certain sections of the Civil Service Regulations, the Personnel Director was separating Schwartz from municipal service and holding him ineligible for municipal service for a period of five years.
Schwartz appealed to the Civil Service Commission, which affirmed the ruling of the Personnel Director. An appeal to the Court of Common Pleas of Philadelphia resulted in an order directing the Civil Service Commission to hold a new hearing. A rehearing was held before the Commission, and the Commission again affirmed Schwartz's dismissal. Schwartz again appealed to the Court of Common Pleas, which reversed and ordered his reinstatement with back pay. A divided Superior Court reversed the Court of Common Pleas and reinstated the Civil Service Commission's order affirming the dismissal. We granted allocatur and now we reverse.
The case is most technical and difficult. The city can point to no provisions in the charter which give the personnel director the explicit authority to dismiss appellant. All of the provisions in the charter which discuss dismissals of a civil service employee imply that only the "appointing authority," in this case the Board of Revision of Taxes, had the power to dismiss appellant.
"Section 7-201. Appeals. The Civil Service Commission shall hear and dispose of appeals as provided in this section. Any employee who is dismissed or demoted
after completing his probationary period of service, or who is suspended for more than ten days in any one year, may, within thirty days after such dismissal, demotion or suspension, appeal to the Commission for review thereof. Every appeal shall be heard promptly. Upon such review, both the appealing employee and the appointing authority involved shall have the right to be heard publicly and to present evidence; but technical rules of evidence shall not ...