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JOSEPH KLESCHICK v. JOSEPH O'NEILL ET AL. (04/28/78)

decided: April 28, 1978.

JOSEPH KLESCHICK, APPELLANT
v.
JOSEPH O'NEILL ET AL.



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Joseph Kleschick v. Commissioner Joseph O'Neill and City of Philadelphia, No. 3962 November Term, 1975.

COUNSEL

Stanley Bashman, with him Bashman & Wolf, for appellant.

Gayle R. Smith, Assistant to the City Solicitor, and Sheldon L. Albert, City Solicitor, for appellee.

Judges Wilkinson, Jr., Blatt and DiSalle, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson

[ 35 Pa. Commw. Page 130]

This is an appeal from a decision of the Court of Common Pleas of Philadelphia County denying appellant's

[ 35 Pa. Commw. Page 131]

    request that a mandamus order be issued forcing the appellees to reinstate appellant to his position as a police officer with the Philadelphia Police Department (Department). We affirm the lower court.

Appellant was dismissed from the Department on May 18, 1974. He appealed this decision to the Philadelphia Civil Service Commission (Commission). The Commission ordered that appellant be reinstated without back pay on the first day of the next pay period following their opinion, which was dated April 4, 1975. This decision was eventually appealed to this Court and affirmed. Kleschick v. Civil Service Commission, 27 Pa. Commonwealth Ct. 125, 365 A.2d 700 (1976).

Appellant was not reinstated, however, and the instant suit was then initiated. The basis for appellees' failure to reinstate appellant is Section 9.1411 of the Civil Service Regulations of Philadelphia, which reads as follows:

An employee who is reinstated or has been absent from work for a period of three (3) months or longer due to layoff, illness, leave without pay, or military leave shall be required to pass satisfactorily a medical examination before returning to work.

Appellant did not pass his medical exam, since x-rays revealed that he suffers from bilateral spondylolysis and spondylolisthesis. These are congenital back conditions which involve a defect in the arch of the vertebrae and a slippage of adjacent vertebrae. It is the policy of the Department to reject applicants for the uniformed services who suffer from these conditions because studies have shown that these people are disproportionately ...


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