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HOWARD SCHULTZ v. CITY PHILADELPHIA (01/06/83)

argued: January 6, 1983.

HOWARD SCHULTZ, ROBERT KOPSITZ AND CHARLES P. DITIMER, APPELLANTS,
v.
CITY OF PHILADELPHIA



NO. 444 PHILADELPHIA 1981, Appeal from the Order Entered February 7, 1981, In the Court of Common Pleas of Philadelphia County, Civil at No. 753 October Term, 1980.

COUNSEL

Gilbert E. Toll, Philadelphia, for appellants.

Ralph J. Teti, Philadelphia, for appellee.

Spaeth, Beck and Johnson, JJ. Johnson, J., concurs in the result. Spaeth, J., did not participate in the consideration or decision of this case.

Author: Beck

[ 314 Pa. Super. Page 197]

In this appeal, three retired Philadelphia police officers, Howard Schultz, Robert P. Kopsitz and Charles Dittmer, are appealing from the lower court's sustaining of Preliminary Objections by appellee, the City of Philadelphia, to the suit in assumpsit brought by the officers against the city.

Initially we note that an order sustaining Preliminary Objections is a final order and appealable under 42 Pa.C.S. ยง 742, so that jurisdiction of this Court is established on these grounds. Nevertheless, 42 Pa.C.S. 762(a)(4) confers exclusive appellate jurisdiction in the Commonwealth Court for civil matters arising under any municipality. Since no objection has been filed to our jurisdiction, Pa.R.Appel.P. 741(a) operates to perfect the jurisdiction of this Court, and Pa.R.Appel.P. 752 confers discretion upon us to hear the appeal or to transfer it. Commonwealth v. Sensi, 287 Pa. Super. 452, 430 A.2d 691 (1981), Jost v. Phoenixville Area School District, 267 Pa. Super. 461, 406 A.2d 1133

[ 314 Pa. Super. Page 198]

(1979). In this case, in the interest of judicial economy, we exercise our discretion to resolve the issues on appeal in this tribunal.

Appellants allege that the Police Department of the City of Philadelphia required them to work overtime hours, in excess of their regular work week. Up until 1964, the City of Philadelphia elected either to pay them for their overtime hours or to give them compensatory time, i.e. time off with pay, on an hour for hour basis. In June 1965 the city adopted certain civil service regulations which limited the amount of compensatory time which appellants could accumulate to 120 hours maximum. Despite the new regulations, the city required the officers to work overtime, so that each accumulated 600 hours of compensatory time. When appellants retired, the city refused to pay them for compensatory time exceeding 120 hour limitation, even though some of that compensatory time was accumulated prior to the effective date of the new regulations, i.e. June 4, 1969.

When the suit in assumpsit was initiated,*fn1 the city filed Preliminary Objections alleging that the suit was barred under the doctrine of lis pendens. They claimed that Fraternal Order of Police v. Rizzo et al., September Term 1977, no 3922 was in progress and that its results would determine the rights of the parties in the action brought by the three officers. The court sustained the Preliminary Objections on the grounds that the parties, the rights asserted, and the relief sought were the same in both cases. Commonwealth ex rel. Lindsley v. Robinson, 30 Commw. 96, 372 A.2d 1258 (1977).

Between the time that the lower court sustained appellee's Preliminary Objections and the present, the pending suit has been tried and appealed. The Court of Common Pleas, ...


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