Appeal from the Order of the Court of Common Pleas of Philadelphia County, in case of Cleveland Hockaday v. Civil Service Commission, City of Philadelphia, and Department of Streets, City of Philadelphia, No. 4493 August Term, 1969.
Mitchell A. Kramer, for appellant.
James M. Penny, Jr., Assistant City Solicitor, with him John Mattioni, Deputy City Solicitor, and Martin Weinberg, City Solicitor, for appellees.
Judges Crumlish, Jr., Wilkinson, Jr., and Blatt, sitting as a panel of three. Opinion by Judge Crumlish, Jr.
This appeal came to us following an Order of the Court of Common Pleas of Philadelphia County affirming a decision of the Civil Service Commission which upheld the dismissal of appellant Hockaday for abandoning his work position.
The history of this case is detailed and a review of the prior proceedings is necessary in order to fully understand the issue now before this Court.
Appellant held the position of "laborer" in the Department of Streets of Philadelphia. He was also a delegate of the local union, elected at his employment station which was located at Seventh Street and Pattison Avenue.
On December 4, 1967, appellant was dismissed from City employment on a charge of falsifying proof in justification of payment of sick leave. He appealed to the Civil Service Commission and following a hearing, the Commission sustained him. The Commission's order provided that appellant be: "reinstated to his former position . . . without loss of the emoluments of his position for the period he was prevented from serving therein by the discipline imposed. . . ."
The City then filed two separate Petitions for Rehearing, both of which were denied. The City reinstated appellant and assigned him to Bartram Incinerator.
The appellant argued that his assignment to Bartram Incinerator rather than reassignment to the Seventh Street and Pattison Avenue location constituted a failure of the City to comply with the Commission's order to restore him "to his former position." On May 20, 1968, appellant filed with the Civil Service Commission a Petition for the enforcement of its order. Without considering the merits of appellant's argument, the Commission by a letter dated June 13,
[ 9 Pa. Commw. Page 3921968]
, advised him that the Commission lacked jurisdiction. Following a meeting between his counsel and the Acting Personnel Officer of the Department of the Streets, appellant, on May 8, 1968, accepted the appointment to the new location "under protest."
At the same time, appellant, who was a candidate in the May 15th election for president of Sanitation Local 427 requested a leave of absence in order to campaign.*fn1 The leave was granted on May 9, 1968 to run until May 15, 1968 with the provision that appellant ...