Appeal from order of Court of Common Pleas of Allegheny County, Jan. T., 1968, No. 196, in case of James F. McGrath v. Leonard C. Staisey et al.
James L. Weisman, with him Samuel Avins, and Avins & Weisman, for appellant.
Francis A. Barry, First Assistant County Solicitor, with him David J. Greenberg, Assistant County Solicitor, and Maurice Louik, County Solicitor, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Musmanno did not participate in the decision of this case. Concurring Opinion by Mr. Chief Justice Bell. Dissenting Opinion by Mr. Justice Cohen. Mr. Justice Eagen joins in this dissenting opinion.
On June 12, 1965 appellant, a patrolman in the Allegheny County Bureau of Police, took a competitive written civil service examination for a promotion to the position of sergeant. The examination was administered by the Civil Service Commission for Allegheny Police and Firemen. Appellant attained the third highest grade on the test and was properly placed third on the eligible list submitted by the Civil Service to the County Commissioners; this list was to remain in effect for two years. During that two year period three positions for sergeant were filled, by the patrolmen achieving the first, fourth and fifth highest grades on the examination. Appellant then instituted this mandamus action to compel his promotion by the County Commissioners to the rank of sergeant and to award damages for the difference in pay he would have received as a sergeant since June 12, 1967. Appellees filed preliminary objections in the form of a demurrer contending that appellant had failed to state a cause of action. This demurrer was sustained and appellant took this appeal.
Both parties agree that there is but one statute which governs this situation. It directs: "Promotions shall be based upon merit, to be ascertained by written examinations. . . . All examinations for promotions shall be practical in character and such as will fairly test the merit and fitness of the persons seeking promotion." Act of July 28, 1953, P. L. 723, 16 P.S. § 4516. (Emphasis supplied.)
It is appellees' contention that the language of this provision would merely require that the applicant "pass" the examination in order to demonstrate sufficient merit to be worthy of promotion and that other factors such as physical agility, personal courage and leadership qualities could then be considered among
those who "pass" in deciding who shall and who shall not be promoted. Appellant rebuts this argument by pointing to the clear language of the statute itself. Appellant argues that if promotions are to be based on merit, i.e., with the most meritorious being promoted first, and merit is to be determined solely by the examination, as the statute explicitly prescribes, then it necessarily follows that the patrolman with the highest grade on the examination should be promoted first.
We believe that appellant must prevail. To adopt the interpretation of this language urged by appellees would torture the plain meaning of the statutory provision. Contrary to appellees' argument that merit "does not, by any stretch of the imagination mean first in a written examination," according to the statute, the only way to ascertain merit is by a written test. And since the act states that merit is to be the sole criterion for promotion, there is no reasonable manner in which the statute can be read to authorize the use of criteria other than those in the test.
Further support for the appellant's position is found in a provision of the Second Class Cities Code where the Legislature explicitly established that factors other than the score on a written examination shall be used. "Promotions shall be based upon merit to be ascertained by tests to be provided by the civil service commission and upon the superior qualifications of the person to be promoted as shown by his previous service and experience." (Emphasis supplied.) Presumably if the Legislature intended merit to include nonwritten examination factors in second class counties it could have said so with this or similar language. Certainly words more capable of expressing this ...