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decided: July 10, 1987.


President Judge Crumlish Jr., Judges Craig, MacPhail, Doyle and Barry. Opinion by Judge MacPhail.

Author: Macphail

[ 107 Pa. Commw. Page 290]

On April 10, 1987 this Court filed an opinion and order*fn1 which reversed an order of the Court of Common Pleas of Philadelphia permitting Sergeants of the Philadelphia Police Department to sit for an examination for promotion to Lieutenant even though such persons would not have the required one-year of permanent Civil Service status as of the date the examination was to be given. The factual background of the case is more fully set forth in our previous opinion.

An application for reargument was timely filed together with a petition for a stay whereupon we entered an order granting the stay and the application for reargument but restricting reargument to the issue of whether the injunction issued by the court of common pleas should be dissolved prospectively or retroactively.

From the briefs of the litigants and amici we ascertain that a Lieutenant eligibility list of 236 names was certified as a result of the examination given pursuant to the order of the court of common pleas. That list included 49 Sergeants who did not have the requisite time in grade to sit for the examination. There have been 44 promotions from the list including 7 Sergeants who would not have been on the list absent the trial court's order.

None of the briefs cite any legal authority in support of the views of the litigants as to how the issue before us should be resolved. In Brewer v. Pennsylvania Board of Probation and Parole, 96 Pa. Commonwealth Ct. 423,

[ 107 Pa. Commw. Page 291507]

A.2d 934 (1986), we outlined the legal principles usually applicable in determining whether a new decision should be given prospective or retroactive effect.*fn2 We doubt that those principles are applicable here, however, since our decision did not establish a new principle of law. We were merely called upon to determine whether the trial court erred as a matter of law when it held that certain Sergeants were permitted to anticipate eligibility in order to take the examination, contrary to the instructions of the Personnel Director.

We, therefore, as did the litigants, resort to a balancing of the equities in the interest of fairness and justice. On the one hand, those Sergeants, who did qualify with time in grade at the time the examination was given, argue that those who should not have taken the examination pursuant to this Court's decision, should not now be permitted to benefit from the trial court's error and that to hold that our order is prospective only would perpetuate an unfortunate wrong to them and their careers. On the other hand, those Sergeants who took the examination because the trial court ordered that they may do so, contend that to make the order

[ 107 Pa. Commw. Page 292]

    retrospective would cause demotions in the case of the seven already promoted and result in having less than the best qualified people on the promotion list.

Needless to say, there is merit in both arguments and we are sensitive to the need to maintain morale and efficiency in the Philadelphia Police Department.

After carefully weighing all of the circumstances, we have concluded that our order should be prospectively applied only to those Sergeants who have already been promoted to Lieutenant. As to all others who are on the certified list but who were not eligible to take the examination according to our decision, the order shall be retroactive. We have come to that conclusion because we believe that the seven who have already been promoted should not be reduced in rank because of judicial error. As to the remaining 42, nothing has occurred which will need to be undone other than to remove them from the eligibility list. Inasmuch as they should not have been on that list in the first place, we do not perceive this as a severe penalty. The removal of those names then permits the addition of those Sergeants who did have the necessary time in grade to the eligibility list.

It will be so ordered.


The order of this Court entered April 10, 1987 is affirmed and shall be applied prospectively only with respect to those Sergeants promoted to Lieutenant prior to April 10, 1987 from the eligibility list certified following the examination given February 8, 1986. In all other respects, the order of this Court entered April 10, 1987 shall be applied retroactively.


Order of April 10, 1987 affirmed with modifications.

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