Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Robert Yuska v. City of Pittsburgh and Civil Service Commission of the City of Pittsburgh, No. GD 85-11972.
Stanford A. Segal, with him, Raymond N. Sanchas, Gatz, Cohen, Segal and Koerner, P.A., for appellant.
Richard J. Joyce, Assistant City Solicitor, with him, Kellen McClendon and D. R. Pellegrini, City Solicitor, for appellee.
Judges MacPhail and Doyle, and Senior Judge Rogers, sitting as a panel of three. Opinion by Judge Doyle. Judge Rogers dissents.
[ 100 Pa. Commw. Page 170]
This is an appeal by Robert Yuska from an order of the Court of Common Pleas of Allegheny County which sustained the preliminary objections of the City of Pittsburgh (City) and the Civil Service Commission of Pittsburgh (Commission) and dismissed Yuska's complaint in mandamus. As pled in the complaint, Yuska is a duly appointed Captain of the City's Fire Department (Department) and has complied with all civil service laws applicable to his employment. Yuska further averred that he is eligible to take an examination for promotion to the position of Instructor of Trainees. The City, however, according to Yuska's allegations, has refused to administer such a test. Yuska also asserts*fn1 that the City has violated its duty by allowing persons to act "out of grade" in this position for periods in excess of fifteen days, thereby avoiding the legal requirement that examinations for permanent positions be given. Yuska, asserting that he has been damaged by the City's failure to implement a competitive examination for the position in question, requested that the common pleas court issue an order directing the City to hold a competitive examination and place Yuska on the eligible list for such examination.
The City filed a demurrer to the complaint alleging that Yuska had set forth no facts indicating his entitlement to take an examination nor had he pled facts indicating any duty on the part of the City to administer an examination or fill vacancies.
The trial court determined that Yuska had not established that the City and Commission are compelled
[ 100 Pa. Commw. Page 171]
to perform a ministerial or mandatory duty corresponding to a legal right of Yuska's and hence sustained the City's preliminary objections and dismissed the complaint.
On appeal we must determine whether mandamus would properly lie under the facts as pled by Yuska. It is, of course, well settled that mandamus will not lie unless the moving party had alleged a clear right to the relief requested, a clear duty on the part of the non-moving party and a want of any other adequate remedy. Shaler Area School District v. Salakas, 494 Pa. 630, 432 A.2d 165 (1981). In addition, the relief sought must be to compel the performance of a ministerial, not a discretionary duty. Id.
Yuska relies upon Section 3.1 of the Act of June 27, 1939,*fn2 (Firemen's Civil Service Act) 53 P.S. § 23493.1, which provides that vacancies which occur shall be filled from the next lowest rank. Yuska alleges that his position is the next lowest rank. In addition, Section 3.2(a) of the Firemen's Civil Service Act,*fn3 53 P.S. § 23493.2(a), also states that a vacancy "may be temporarily filled for a period not to exceed fifteen days." Yuska asserts that the City has filled the position "by allowing persons to act out of grade" for a period in excess of fifteen days. He thus reasons that the city should be mandated to hold a competitive examination and properly fill the position.
There are several matters here which are intertwined but must be examined separately. There is the question of whether the City has filled the position for a period in excess of fifteen days, and if it has, what ...