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WILLIAM WHYTE AND DONALD DECKER v. CITY SCRANTON EUGENE F. HICKEY (12/16/80)

decided: December 16, 1980.

WILLIAM WHYTE AND DONALD DECKER, APPELLANTS
v.
CITY OF SCRANTON; EUGENE F. HICKEY, MAYOR; JAMES MCDONNELL, DIRECTOR OF PUBLIC SAFETY; JOSEPH CORCORAN, CITY CONTROLLER, APPELLEES



Appeal from the Order of the Court of Common Pleas of Lackawanna County in the case of William Whyte and Donald Decker v. City of Scranton; Eugene F. Hickey, Mayor; James McDonald, Director of Public Safety; Joseph Corcoran, City Controller, Nos. 817 and 819 March Term, 1978.

COUNSEL

Thomas M. Holmes, with him James W. McNulty, for appellants.

James A. Doherty, with him John J. Brazil, City Solicitor, for appellees.

Judges Mencer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 55 Pa. Commw. Page 354]

William Whyte and Donald Decker (appellants) have appealed from the October 19, 1979 order of the Court of Common Pleas of Lackawanna County which dismissed their exceptions to an earlier order of that court denying relief in equity. We affirm.

[ 55 Pa. Commw. Page 355]

The facts in this case are not in dispute. The appellants were employed as "reserve patrolmen" by the City of Scranton (City) for several years.*fn1 This is an entry-level civil service position in the City's Bureau of Police. A reserve patrolman may be promoted to the position of "regular patrolman" only if he passes a competitive examination and his name appears among the top three candidates on the list, based on test scores, prior performance level, and other factors. The examination is given periodically and the list of persons eligible for promotion is updated after each examination. Those candidates who are promoted serve for a probationary period of three months before the promotion becomes final.

The appellants have each taken the competitive examination for promotion several times and have received passing grades on all but one occasion. There is no evidence, however, that their names were ever among the top three on the list for promotion.

On September 3, 1971, the appellant Decker was assigned the duties of a regular patrolman, with his salary to be paid by the Federal Highway Safety Program. The appellant Whyte was given a similar assignment on August 3, 1973. Both appellants continued to serve in this capacity until September 30, 1974. On October 1, 1974, both appellants were transferred to the regular city payroll as regular patrolmen and, on January 1, 1975, their employment was terminated. In February 1976, the appellants were rehired by the City as security guards and, in March 1976, they were each appointed to the position of "police cadet" under Title VI of the Comprehensive Employment and Training Act, as amended (CETA VI), 29 U.S.C. § 801 et seq., a federal program to provide employment.

[ 55 Pa. Commw. Page 356]

The appellants claim that they received a de facto promotion pursuant to Section 4 of the Act of June 3, 1943, P.L. 826 (Act), 53 P.S. § 30454 (relating to the civil service status of employees of cities of the second class A), by virtue of having passed the civil service examination for promotion and then having served as regular patrolmen from October 1, 1974 through January 1, 1975. They filed an action in equity to recover certain fringe benefits which they claimed were due them as a result of the de facto promotion, but the court below concluded ...


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