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FRANK L. RIZZO v. JOSEPH SCHMANEK (12/31/81)

decided: December 31, 1981.

FRANK L. RIZZO, MAYOR OF THE CITY OF PHILADELPHIA ET AL., APPELLANTS
v.
JOSEPH SCHMANEK, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Joseph Schmanek v. Frank L. Rizzo, Mayor of Philadelphia and Joseph O'Neill, Police Commissioner, No. 1830 December Term, 1978.

COUNSEL

Louis F. Hinman, III, Deputy City Solicitor, with him, Alan J. Davis, City Solicitor, for appellants.

Kenneth E. Aaron, for appellee.

Judges Williams, Jr., MacPhail and Palladino, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 63 Pa. Commw. Page 548]

This is an appeal by the Mayor and Police Commissioner of the City of Philadelphia (City) from an order making final a Decree Nisi in mandamus by the Court of Common Pleas of Philadelphia County compelling the City to restore Joseph Schmanek (Appellee) to the position of patrolman in the City's police department. We affirm.

The facts in this case are undisputed. Appellee entered the civil service of the City on March 6, 1978, as a police patrolman and was laid off on August 14, 1978. He was recalled to his patrolman's position on September 3, 1978, but, on September 11, 1978, Appellee received a notice of rejection of his employment as a probationary employee pursuant to Philadelphia Civil Service Regulation 14. Appellee sent a notice of appeal of his dismissal to the Philadelphia Civil Service Commission (Commission) but the appeal was

[ 63 Pa. Commw. Page 549]

    refused for a lack of jurisdiction over the dismissals of probationary employees. Appellee then filed a complaint in mandamus in the court of common pleas asserting that, under Section 14.01 of the Philadelphia Civil Service Regulations his probationary period was six months, that said six month period was completed on September 6, 1978, that under Section 7-303 of the Philadelphia Home Rule Charter he could have been dismissed on September 11, 1978, only for just cause and that he should therefore be restored to his position as a patrolman. The lower court agreed on the grounds that Appellee's probationary period was never extended and ordered the City to restore Appellee to his patrolman's position. The appeal to this Court followed.

It is well settled that mandamus is an extraordinary legal remedy which will only issue to compel the performance of a ministerial act or a mandatory duty where the petitioner has a clear legal right, the respondent has a corresponding duty and there is no other appropriate and adequate remedy. Pennsylvania State Lodge Fraternal Order of Police v. City of Wilkes-Barre, 37 Pa. Commonwealth Ct. 60, 388 A.2d 1146 (1978). "Mandamus has been recognized to be the proper action where [as here] the main issue is the propriety of a removal from a position which was heretofore properly held and to which reinstatement is being sought." Wolkoff v. Owens, 12 Pa. Commonwealth Ct. 74, 77, 314 A.2d 545, 546 (1974). The decision whether to issue a mandamus is within the discretion of the trial court, Coleman v. Board of Education, 477 Pa. 414, 383 A.2d 1275 (1978), and this Court's scope of review is limited to a determination of whether the lower court abused its discretion or committed an error of law. Cooper v. City of Greensburg, 26 Pa. Commonwealth Ct. 245, 363 A.2d 813 (1976).

[ 63 Pa. Commw. Page 550]

The City's initial challenge to the decision of the trial court is that Appellee had an appropriate and adequate remedy and therefore mandamus should not lie. In raising this challenge, the City contends that the Commission's letter informing Appellee that it would not grant him a hearing because of his alleged probationary status, was a final adjudication with respect to his employment status and was thus appealable to the court of common pleas under Section 752 of the Local Agency Law, 2 Pa. C.S. § 752. We disagree. Section 553 of the Local Agency Law, 2 Pa. C.S. § 553 states that "[n]o adjudication of a local agency shall be valid as to any party unless he shall have been afforded reasonable notice of a hearing and an opportunity to be heard." No notice of a hearing nor opportunity to be heard was afforded Appellee with the filing of his notice of appeal; thus the letter herein from the Commission was not a valid adjudication from which an appeal may be taken. See Callahan v. Pennsylvania State Police, Pa. , 431 A.2d 946 (1981). Accordingly, since Appellee was considered a probationary employee by the Commission and unable to appeal his rejection for employment under Section 14.042 of the Philadelphia Civil Service Regulations, we must rule that the lower court was correct in holding that Appellee had exhausted all administrative remedies and was properly before that court in mandamus.

The City next contends, that the lower court's issuance of the mandamus was incorrect as a matter of law because the purpose of a probationary period is to see if the candidate can capably discharge his or her duties and that this purpose is defeated if a lay-off does not automatically extend a probationary period. Section 14.01 of the Philadelphia Civil Service ...


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