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JOHN S. CHMILL v. CITY PITTSBURGH (07/15/77)

decided: July 15, 1977.

JOHN S. CHMILL, DAVID HIROSKY, JOHN G. HOLTZ, THOMAS PFLUM, DAVID J. PUCIATA, LAWRENCE T. YAKICH AND PAUL R. MYERS, APPELLANTS
v.
CITY OF PITTSBURGH, PITTSBURGH CIVIL SERVICE COMMISSION AND STEPHEN A. GLICKMAN, APPELLEES



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of John S. Chmill, David Hirosky, John G. Holtz, Thomas Pflum, David J. Puciata, Lawrence T. Yakich and Paul R. Myers v. City of Pittsburgh, Pittsburgh Civil Service Commission and Stephen A. Glickman, No. GD 76-08187 and S.A. Nos. 614, 615, 661-664, 750 of 1976.

COUNSEL

Christopher LePore, with him Stanford A. Segal, and Gatz, Cohen, Segal & Koerner, for appellants.

Clifford C. Cooper and Robert B. Smith, with them Daniel M. Curtin, First Assistant City Solicitor, and Mead J. Mulvihill, Jr., City Solicitor, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer. Dissenting Opinion by Judge Wilkinson, Jr. Judge Rogers joins in this dissent.

Author: Mencer

[ 31 Pa. Commw. Page 100]

John S. Chmill, David Hirosky, John G. Holtz, Thomas Pflum, David J. Puciata, Lawrence T. Yakich, and Paul R. Myers (appellants) are individuals who reside in the City of Pittsburgh. In August of 1975, appellants took a physical performance examination to become certified and hired as firefighters for the City of Pittsburgh. Out of approximately 1500 persons who took the test, appellants were ranked between slot No. 15 and slot No. 21 on the competitive list of applicants who have passed the examination for the position of firefighter.

The City of Pittsburgh requested the Civil Service Commission of that city to certify, for purposes of appointment and hiring, the names of 20 individuals for the position of firefighter. In response to this request, the Commission, on March 23, 1976, decided to certify 50 percent white male candidates and 50 percent minority, including female, candidates, rather than to certify the 20 individuals who were at the top of the competitive list, as prescribed by Section 3.1 of the Act of June 27, 1939, P.L. 1207, as amended, added by the Act of July 3, 1963, P.L. 186, § 2, 53 P.S. § 23493.1, Subsection (a) of Section 3.1 reads as follows:

(a) Both original appointments and promotions to any position in the competitive class in any bureau of fire in any city of the second class

[ 31 Pa. Commw. Page 101]

    shall be made only from the top of the competitive list: Provided, however, That the appointing officer may pass over the person on the top of the competitive list for just cause in writing. Any person so passed over shall, upon written request, be granted a public hearing before the Civil Service Commission.

As a result of the Commission's decision to use a quota system, the appellants were not hired as firefighters by the City of Pittsburgh. This appeal has been argued on the premise that, if the Act had been followed, the appellants would have been certified and hired to the firefighter positions.

The appellants filed a complaint in equity, seeking to enjoin the City of Pittsburgh from hiring any firefighters until their status could be ascertained and the Pittsburgh Civil Service Commission from certifying any applicants to the position of firefighter for the City of Pittsburgh until their status could be ascertained and also seeking the issuance of an order requiring the Civil Service Commission to maintain the current eligibility list during the pendency of the litigation and an order directing the Civil Service Commission to certify appellants to the position of firefighter for the City of Pittsburgh. Appellants also filed appeals with the Pittsburgh Civil Service Commission, which were denied, and thereafter filed further appeals with the Court of Common Pleas of Allegheny County. The trial court consolidated the appeals from the decisions of the Pittsburgh Civil Service Commission with the equity suit. On June 4, 1976, the trial court denied the relief sought by appellants in their equity action and further dismissed their statutory appeals, thereby affirming the determination of the Pittsburgh Civil Service Commission to certify 20 individuals for the position of firefighter in the City of Pittsburgh according to a quota system providing

[ 31 Pa. Commw. Page 102]

    for 50 percent of the individuals certified to be members of minority groups. This appeal followed.

The law of this Commonwealth is that appellate courts, when considering appeals from the grant or refusal of a preliminary injunction, will look no further than a determination of whether reasonable grounds appear for the trial court's granting or refusing of the preliminary injunction. McMullan v. Wohlgemuth, 444 Pa. 563, 281 A.2d 836 (1971). Even with that narrow standard of review in mind, we conclude that the refusal to grant the relief sought by the appellants in this case was inappropriate and the order entered by the trial court must be reversed.

The trial court stated that "[i]t is admitted and apparent that the defendants [appellees] violated the express terms of the Civil Service Act" and continued: "Original [appointments] must be made 'from the top of the competitive list.' The defendants' [appellees'] quota system deviates from this straight down the list approach in the Act. The purpose of the Civil Service Act was to guarantee that appointments would be made solely on the basis of merit, to obtain the best man or woman for the job."

Having so concluded, we believe the trial court should have entered an appropriate order reflecting such conclusions. It is an accepted view in this Commonwealth that no employee in the civil service may be appointed, transferred, reinstated, promoted, or discharged in any manner or by any means other than those specified by statutes regulating civil service. McGrath v. Staisey, 433 Pa. 8, 249 A.2d 280 (1968). The Pittsburgh Civil Service Commission's unilateral decision to implement a quota system was a violation of the Act of June 27, 1939 and established a clear right to relief for the appellants.

However, the trial court reasoned that "the federal and state civil rights acts and the federal and state

[ 31 Pa. Commw. Page 103]

    constitutions take precedence over the civil service acts where the potential of discriminatory application is present." Our examination of that premise, when utilized to justify a quota system, convinces us that the trial court was simply in error in this assertion. Civil service laws, like civil rights laws, were enacted to ameliorate a social evil. In the former case, it was the spoils system; in the latter, discrimination. Kirkland v. New York State Department of Correctional Services, 520 F.2d 420, reh. en banc denied, 531 F.2d 5 (2d Cir. 1975).

Our consideration commences with a whole-hearted endorsement of Chief Justice Stone's comment in Hirabayashi v. United States, 320 U.S. 81, 100 (1943): "Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality."

However, a racial quota is derogatory of and patronizing to the intended beneficiary minority. As was stated in Fraternal Order of Police v. City of Dayton, 35 Ohio App. 2d 196, 301 N.E. 2d 269, 271 (1973), "[n]o doubt all will agree in the abstract that any discrimination in the classified service because of race, color or religious or political faith or conviction is not only legally, but also morally, wrong, and wholly indefensible. But the cure for discrimination is not more discrimination. Such a course would but compound and aggravate the ...


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