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PERSONNEL DEPARTMENT v. WENDELL HILLIARD (09/26/88)

decided: September 26, 1988.

PERSONNEL DEPARTMENT, CITY OF PHILADELPHIA AND KEVIN TUCKER, APPELLANTS
v.
WENDELL HILLIARD, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County, in the case of Wendell Hilliard v. Personnel Department of The City of Philadelphia and Kevin Tucker, Commissioner, Philadelphia Police Department, No. 3140 September Term, 1987.

COUNSEL

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

Carol Waties, with her, David Wayne Waties, Waties & Waties Law Offices, for appellee.

Judges Craig and Doyle, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick. Concurring Opinion by Judge Doyle.

Author: Narick

[ 120 Pa. Commw. Page 67]

Before us is an appeal by the Personnel Department, City of Philadelphia and Kevin Tucker*fn1 (Appellants) from a decision and order of Judge Victor J. DiNubile of the Court of Common Pleas of Philadelphia which directed Appellants to permit Appellee Wendell Hilliard (Hilliard) to enter the police recruit class scheduled to commence on or about October 5, 1987. However, Judge DiNubile's order also forbade Hilliard from maintaining outside employment and breach of this condition would result in Hilliard's dismissal from his employment as a police officer. We reverse.

This case originates from a complaint in equity and petition for injunctive relief filed by Hilliard after his dismissal from employment as a probationary police officer with the City of Philadelphia. Pursuant to Section

[ 120 Pa. Commw. Page 687]

-401(J) of the Philadelphia Home Rule Charter*fn2 and Philadelphia Civil Service Regulation 14.01, Hilliard, as a civil service employee, was required to successfully complete a six-month probationary period before achieving permanent civil service employment status. During his period of probationary employment, Hilliard was required to participate in a 19-week training class at the Philadelphia Police Academy. All members of the class including Mr. Hilliard were informed during the first week of class that Police Department Directive 121 prohibits probationary police officers from maintaining outside employment. The members of the class including Hilliard were also provided with a police manual. This manual indicated that six demerits would be assessed against individuals maintaining outside employment during their period of probation and that the accumulation of six demerits would result in extra duty assignments.

During his period of probationary employment, Hilliard was also employed as a bus driver with Southeastern Pennsylvania Transportation Authority (SEPTA). On or about July 14, 1987, Hilliard's commanding officer, Lieutenant Michael Beck, received information that Hilliard was employed with SEPTA. When confronted by Lt. Beck, Hilliard admitted that he was employed by SEPTA. Lt. Beck advised Hilliard not to resign from his job with SEPTA until Lt. Beck "got back to him". Subsequently, Hilliard was terminated for maintaining outside employment in violation of Directive 121.

The trial court denied Hilliard's request for injunctive relief reasoning that Hilliard was an employee at will and that the police department had a valid right to terminate any probationary employee for maintaining

[ 120 Pa. Commw. Page 69]

    outside employment. However, the trial court further reasoned that certain equities did ...


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