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JAMES M. ELKO v. CIVIL SERVICE COMMISSION (12/06/74)

decided: December 6, 1974.

JAMES M. ELKO, JAMES T. MCDONOUGH, ANGELO A. CILEONE, VINCENT R. TALARICO, JAMES P. YEAGER AND JOSEPH F. NUGENT, APPELLANTS,
v.
CIVIL SERVICE COMMISSION, PHILADELPHIA COUNTY, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of James M. Elko, James T. McDonough, Angelo A. Cileone, Vincent R. Talarico, James P. Yeager and Joseph F. Nugent v. Civil Service Commission, Philadelphia County, No. 166 April Term, 1971.

COUNSEL

Daniel J. McAleer, with him Thomas F. McDevitt, for appellants.

James M. Penny, Jr., Assistant City Solicitor, with him Raymond Kitty, Deputy City Solicitor, and Martin Weinberg, City Solicitor, for appellee.

Judges Crumlish, Jr., Kramer and Wilkinson, Jr., sitting as a panel of three. Opinion by Judge Kramer.

Author: Kramer

[ 16 Pa. Commw. Page 103]

This is an appeal from an order of the Court of Common Pleas of Philadelphia County, dated March 17,

[ 16 Pa. Commw. Page 1041972]

, affirming a decision of the Civil Service Commission of the City of Philadelphia (Commission) and dismissing an appeal therefrom. The appellants are all firemen employed by the City of Philadelphia.

This case arose from the alleged failure of these firemen to obey an order of the Fire Department regulating the wearing of sideburns, chin whiskers, mustaches and long hair.*fn1 The appellants were given a hearing before the Fire Board of Investigation on July 1, 1970, found guilty of "disobedience of orders," and suspended for ten days. The "Notice of Suspension" issued to each fireman also informed him that (1) he would be "reprimanded" and transferred to a new assignment; and, (2) he would be inspected for compliance with the appropriate regulations and dismissed if such compliance was not found at the end of the suspension period. Apparently the appellants are presently in compliance with the regulation and the instant case deals only with the validity of punishment already inflicted.

The appellants appealed to the Commission, and the record indicates an initial reluctance on the part of the Commission to entertain the appeal. The City Law Department rendered a preliminary opinion advising the Commission to take jurisdiction over the appeal, and the Commission did so. A hearing was held on February 25, 1971, and on March 17, 1971, the Commission issued its opinion, dismissing the appeal for lack of jurisdiction. The appellants then appealed to the Court of Common Pleas of Philadelphia County, which, on March 17, 1972, affirmed the Commission. Appeal to this Court followed.

[ 16 Pa. Commw. Page 105]

It should be noted that at some point during the proceedings a civil rights action for injunctive relief was brought by the appellants against the Fire Commissioner in the United States District Court for the Eastern District of Pennsylvania, which action is apparently being stayed "pending the exhaustion of administrative remedies and judicial review provided for by the City Civil Service Regulations."*fn2

The initial reluctance of the Commission to hear the appeal stemmed from Section 7-201 of the Philadelphia Home Rule Charter, which reads, in relevant part: "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." (Emphasis added.) The instant appellants were not suspended for more than ten days, and the Commission based its March 17, 1971 decision solely on this jurisdictional ground. The Commission expressly declined any comment on the appellants' primary argument that the hair regulations violated their federal constitutional rights. The lower ...


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