Appeal from the Order of the Court of Common Pleas of Berks County, in case of Robert R. Ringler and Local 1803, I.A.F.F. v. Victor R. H. Yarnell, Joseph P. Kuzminski, Anthony J. Carabello, William P. Leonardziak, Earl F. Patterson and The City of Reading, No. 99, June Term, 1971.
Thomas J. Calnan, Jr., with him Stamberg, Caplan, Calnan & Behrle, for appellants.
Robert F. Shapiro, Assistant City Solicitor, with him Calvin Lieberman, City Solicitor, for appellees.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson.
This is an appeal by the President of Local 1803 of the International Association of Fire Fighters individually, as well as by the Local itself, from a decision of the Court of Common Pleas of Berks County sustaining
the appellees' Preliminary Objections in the nature of a demurrer to the appellants' Complaint in Mandamus. The prayer of the Complaint in Mandamus was to require appellees, The City of Reading, its Mayor and Councilmen, to appoint an arbitrator and proceed to arbitration of a dispute it claims constitutes a grievance under the labor contract between the parties. We must affirm the lower court's order sustaining the demurrer.
The specific dispute involves the method of selection of an individual to fill the position of Assistant Fire Chief, Bureau of Fire.
The collective bargaining contract between the parties, effective January 1, 1971, provides in Article 5, Section 2, that "the City agrees to fill all vacancies, temporary or permanent, other than those within Section 1, according to promotion which shall be based upon merit, in accordance with the rules and regulations of the Fire Department Civil Service Board where they apply." (Section 1 deals with filling vacancies in non-supervisory or non-administrative positions, a matter not here in dispute.)
According to the appellants' Complaint, which is conceded to be correct by the appellees' demurrer, the City proposed to fill the vacancy in the position of Assistant Fire Chief in accordance with the provisions of an ordinance passed on July 1, 1970. The method established by Section 5(f) of this ordinance is (quoting from appellants' Exhibit B) "'the Firemen's Union shall nominate and City Council shall appoint an Assistant Fire Chief . . .' from among the members of the volunteer fire companies."
The primary thrust of appellants' argument to this Court is that they have a right to have an arbitrator determine whether this is a grievance and, if he determines that it is, then for the ...