Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1973, No. 2124, in re Commonwealth of Pennsylvania ex rel. District Attorney Arlen Specter and ex rel. Eugene V. Allessandroni, Julian Brereton, Walter W. Cohen, Inez Lundy, William J. Stevens, Jr., Charles W. Sweeney and Esther R. Sylvester, individually and as Assistant District Attorneys v. Lennox L. Moak, Finance Director of the City of Philadelphia.
Arlen Specter, District Attorney, with him Martin H. Belsky, Assistant District Attorney, for appellants.
Martin Weinberg, City Solicitor, with him Sheldon L. Albert, Deputy City Solicitor, and Paul L. Rucci, Assistant City Solicitor, for appellee.
Daniel I. Murphy, with him Anita G. Cella, for amicus curiae.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion of Mr. Justice Roberts. Mr. Chief Justice Jones concurs in the result.
On March 7, 1973, appellants, Alessandroni, Brereton, Cohen, Stevens, Jr., Sweeney, and Sylvester -- assistant district attorneys in the City of Philadelphia -- became candidates for nomination for judge of the court of common pleas for the May, 1973, primary. Appellant Lundy, also an assistant district attorney, became a candidate for nomination for judge of the municipal court.
On the following day, Martin Weinberg, City Solicitor, directed the Finance Director, appellee Lennox Moak, to withhold appellants' pay. In Formal Opinion No. 343, the City Solicitor explained that assistant district attorneys are city employees and, as such, are subject to Section 10-107(5) of the Philadelphia Home Rule Charter.*fn* That section provides: "No officer or employee of the City, except elected officers running for re-election shall be a candidate for nomination or election to any public office unless he shall have first resigned from his then office or employment." Pursuant to the City Solicitor's direction, appellee withheld appellants' compensation.
Appellants filed a complaint in mandamus seeking an order declaring appellants the rightful holders of positions as assistant district attorneys and requiring appellee to compensate them. On March 27, 1973, the complaint was dismissed. This appeal followed and we now affirm.*fn1
the City Solicitor properly noted in Formal Opinion No. 343:
"Many officials perform state functions. The Sheriff of Philadelphia performs duties solely on behalf of the courts of Philadelphia County, whose judges are officers of the Courts. See Dwyer v. Dilworth, 392 Pa. 123 (1958). The Police Commissioner of the City of Philadelphia enforces the criminal laws of the Commonwealth of Pennsylvania. Under the Home Rule Charter Section 440(d), the City Solicitor is empowered.
"'With the approval of the Mayor, . . . (to) . . . investigate any violation within the City of the statutes of the Commonwealth of Pennsylvania or the ordinances of the City which may come to its notice, and shall take such steps and adopt such means as may be reasonably necessary to enforce within the City such statutes and ordinances.'"*fn3
Other indicia of employment lead us to conclude that assistant district attorneys are City employees and subject to the provisions of the Charter. The City Council of Philadelphia, for example, fixes the number of assistant district attorneys, as well as their salaries. The operating budget for fiscal year 1974 reveals that the District Attorney "Department" has been alloted, by City Council, over $2,300,000 to pay the more than 140 assistant district attorneys. Additionally, the Council has budgeted over $1,100,000 for other office personnel and more than $250,000 for materials, supplies, equipment, and purchase of services. It would be anomalous, indeed, to conclude -- as appellants ...