Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Stephen Marion v. William J. Green, Mayor, City of Philadelphia and Morton B. Solomon, Police Commissioner, City of Philadelphia Police Department, No. 1495 January Term, 1981.
Anthony J. Malloy, with him, Richard G. Freeman, Bloom, Ocks and Fisher, for appellant.
Ralph Teti, with him, Jesse Milan, Jr., Assistant City Solicitor, for appellees.
Judges Craig and Colins, and Senior Judge Kalish. President Judge Crumlish, Jr., Judges Rogers, Craig, MacPhail, Doyle, Colins and Palladino. Opinion by Judge Craig. Judge Colins dissents.
[ 95 Pa. Commw. Page 211]
On January 10, 1980, the Philadelphia Police Department dismissed Officer Stephen Marion for engaging in conduct unbecoming an officer. Marion appealed that dismissal to the Philadelphia Civil Service Commission. The commission concluded that the department failed to establish just cause for appellant Marion's dismissal and, by order of November 12, 1980, sustained his appeal. The commission ordered
[ 95 Pa. Commw. Page 212]
the appellant reinstated to his former position, on the first day of the next pay period, subject to one year's probation, because the commission concluded that, although Marion's conduct did not amount to just cause for dismissal, it was not without fault.
Despite the commission's issuance of that order, the police commissioner required that Marion submit to a physical examination, a background check and interview, and a polygraph examination to determine his continued fitness for duty before he would reinstate the officer. Marion passed the medical examination and submitted without objection to the interview and background check, but refused to submit to the polygraph examination.
Marion filed a complaint in mandamus in the Court of Common Pleas of Philadelphia County, requesting that the trial court order the defendants, the mayor and police commissioner (the city), to reinstate him immediately to the position of patrolman. Both parties moved for summary judgment on the mandamus action.
The court dismissed Marion's motion and granted summary judgment in favor of the city, citing Kleschick v. O'Neill, 35 Pa. Commonwealth Ct. 130, 384 A.2d 1370 (1978), in which case this court concluded that the Philadelphia Police Department, where the civil service commission has ordered a reinstatement, may subject the officer to medical examination before reinstating him. Addressing section 9.1411 of the Civil Service Regulations of Philadelphia, expressly requiring a medical examination before reinstatement,*fn1 we stated:
[ 95 Pa. Commw. Page 213]
The regulation in question is clearly applicable to the appellant. He has not alleged nor is there any evidence that the regulation, or the accompanying policy of rejecting those people who suffer from certain congenital back defects, have been applied to him in bad faith or in an otherwise arbitrary manner. Furthermore, the establishment of objective medical criteria which an applicant for a ...