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DONALD WISHNOW v. CITY PHILADELPHIA (07/29/88)

decided: July 29, 1988.

DONALD WISHNOW, APPELLANT
v.
CITY OF PHILADELPHIA, ORVILLE JONES AND MORTON SOLOMON, APPELLEES. CITY OF PHILADELPHIA, APPELLANT V. DONALD WISHNOW, APPELLEE



Appeals from the Order of the Court of Common Pleas of Philadelphia County in the case of Donald Wishnow v. City of Philadelphia and Orville Jones and Morton Solomon, No. 3602, November Term, 1982.

COUNSEL

Deborah R. Willig, with her, Nancy J. McCauley, and Nancy B. G. Lassen, Kirschner, Walters & Willig, for appellant.

Richard C. McNeill, Jr., Assistant City Solicitor, for appellees.

President Judge Crumlish, Jr., Judge Doyle, and Senior Judge Narick, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 118 Pa. Commw. Page 290]

A Philadelphia County Common Pleas Court order granted Donald Wishnow's motion for summary judgment and ordered him reinstated without back pay to the Philadelphia Police Department. The City of Philadelphia appeals the reinstatement. Wishnow appeals the denial of back pay. For the reasons set forth below, we reverse Wishnow's reinstatement.

Wishnow, a probationary civil servant, was assigned to photograph and process criminal suspects for the police department. After Wishnow processed two criminal suspects out of sequence, an investigation ensued.*fn1 Wishnow agreed to answer questions about the incident; however, he refused to submit to a polygraph, despite a warning that his failure to do so could jeopardize retention as a full-time civil service employee. As a result of his refusal, Wishnow was notified five days prior to the end of his probationary period that he would not be retained.

Wishnow sued the City, its Police Commissioner and Personnel Director for reinstatement. His complaint in equity alleged that "the decision . . . to terminate

[ 118 Pa. Commw. Page 291]

    the plaintiff Wishnow because of his refusal to take a polygraph examination is a violation of law and therefore constitutes a violation of public policy." Wishnow also alleged that no adequate remedy at law existed.

The common pleas court, based on stipulated facts and cross motions for summary judgment, concluded that Wishnow's dismissal for refusing a polygraph constituted a violation of public policy. DeVito v. Civil Service Commission, 404 Pa. 354, 172 A.2d 161 (1961). Marion v. Green, 95 Pa. Commonwealth Ct. 210, 505 A.2d 360 (1986), appeal denied, 514 Pa. 633, 522 A.2d 560 (1987).

In reviewing a common pleas court's grant of summary judgment, our scope of review is limited to determining whether the court committed an error of law or abused its discretion. Farley v. Township of Upper Darby, 100 Pa. Commonwealth Ct. 535, 514 A.2d 1023 (1986), appeal denied, 517 Pa. 611, 536 A.2d 1334 (1987).

The City contends that because Wishnow was a probationary employee with no expectation of continued employment, it could refuse to retain him based solely ...


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