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12/02/97 SHEKELA M. BARBOUR-KNIGHT v. CIVIL SERVICE

December 2, 1997

SHEKELA M. BARBOUR-KNIGHT, APPELLANT
v.
CIVIL SERVICE COMMISSION OF THE CITY OF PHILADELPHIA



Appealed From No. 95-10-SD-0090. Common Pleas Court of the County of Philadelphia. Judge LEVIN.

Before: Honorable Joseph T. Doyle, Judge, Honorable Jim Flaherty, Judge, Honorable Jess S. Jiuliante, Senior Judge. Opinion BY Judge Flaherty.

The opinion of the court was delivered by: Flaherty

OPINION BY JUDGE FLAHERTY

FILED: December 2, 1997

Shekela Barbour-Knight (Knight) appeals from an order of the Court of Common Pleas of Philadelphia County (trial court) affirming the decision of the Civil Service Commission of Philadelphia (Commission) sustaining her dismissal from city employment pursuant to Section 8-301 of the Home Rule Charter (Charter) of the City of Philadelphia (City). We affirm.

Knight was employed by the City at the Philadelphia Airport (Airport) as a custodian since 1988. In 1989, Knight began working for the United States Postal Service (USPS) as a clerk. By letter dated October 8, 1993, the City notified Knight that, effective October 12, 1993, she was dismissed from her position at the Airport for being concurrently employed by the City and USPS in violation of Section 8-301 of the City's Charter and Civil Service Regulation 33.022. (R.R. at 24a).

Knight appealed her dismissal to the Commission raising only the issue of whether her dual employment was in violation of the Charter and Regulation 33.022. (R.R. at 27a). The Commission denied Knight's appeal by order dated November 3, 1994 and thereafter denied Knight's application for reconsideration. Consequently, Knight appealed the Commission's decision to the trial court wherein she raised, for the first time, the question of whether the provisions of the Charter and the regulations prohibiting her dual employment are unconstitutional. The trial court remanded the case to the Commission to determine the limited issue of whether employment with USPS was considered employment for the federal government. The Commission concluded that such employment was government employment and again dismissed her appeal. Following remand to the Commission, Knight appealed to the trial court for a second time. The record indicates that the trial court did not hold a de novo hearing but relied upon the record submitted from the Commission and the arguments from counsel. The trial court denied Knight's appeal. On June 24, 1996, Knight appealed the matter to this court. *fn1

Knight raises the following issues on appeal: (1) whether working for USPS constitutes government employment within the meaning of Section 8-301 of the City's Charter; and (2) whether the trial court erred in determining that Section 8-301 of the Charter, which bans City employees from concurrently working for the City and another government agency, rationally serves a legitimate government interest.

I

Knight argues that working for USPS does not constitute government employment within the meaning of Section 8-301. Knight contends that only a position concurrently held with City employment which is "under the government of the United States" is within the proscription of Section 8-301. Knight maintains that, as a result of the passage of the Postal Reorganization Act (Act), *fn2 USPS is an independent corporation under the executive branch of the federal government independent from Congressional control. Accordingly, Knight asserts that, although USPS is subject to statutory regulation and control, it no longer has the same immunity from suit possessed by other federal agencies. Therefore, according to Knight, employment with USPS is akin to employment with a private enterprise. We disagree.

Section 8-301 of the City's Charter, which is at issue in the instant case, provides the following:

Other offices or positions. Except as otherwise provided in this charter, no person shall hold more than one office or position of profit, whether elective or appointed, under the City and no such person shall hold such office or position or hold any other office or position of profit in or under the government of the United States, of the Commonwealth of Pennsylvania, or of any county, city or other political subdivision thereof, other than the office of notary public, any office in the military or naval service of the United States or of the Commonwealth of Pennsylvania, or any ex officio office held by virtue of another office or position.

(Philadelphia Home Rule Charter Section 8-301). Section 33.022 of the Civil Service Regulations incorporates the Charter provision prohibiting dual government employment. *fn3

The trial court remanded Knight's appeal to the Commission for the sole purpose of determining whether USPS constituted a government agency within the meaning of Section 8-301. (Trial court opinion, dated May 23, 1996, at 1). By order dated September 21, 1995, the Commission determined, on remand, that "the postal service, as presently constituted, is not a private enterprise and is still operated, 'in or under the government of the United States.'" (Commission's opinion, dated September 21, 1995). Following a second appeal, the trial court affirmed the Commission. Although the trial court's opinion failed to address whether USPS operated under the government of the United States, the record reveals that Knight preserved this issue by including it in her concise statement of matters presented, filed with the trial court pursuant to Pa. R.A.P. 1925(b), with respect to her notice of appeal. In this regard, the trial court presumably deferred to the Commission's interpretation on this issue. The trial court did recognize that ...


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