The opinion of the court was delivered by: WEINER
The plaintiffs, all of whom were denied employment by the City of Philadelphia on the sole ground that they did not pass a required polygraph test, brought this action to enjoin the use of such test, which they allege deprives them of rights guaranteed by the federal and state constitutions. Trial was held on July 31, 1987.
18 Pa. C.S. § 7321 provides:
(a) Offense defined. - A person is guilty of a misdemeanor of the second degree if he requires as a condition for employment or continuation of employment that an employee or other individual shall take a polygraph test or any other form of a mechanical or electrical lie detector test.
(b) Exception. - The provisions of subsection (a) of this section shall not apply to employees or other individuals in the field of public law enforcement or who dispense or have access to narcotics or dangerous drugs.
That section became effective in 1973.
"The current state of the law in [Pennsylvania] remains as stated by the Pennsylvania Supreme Court in the 1976 case of Commonwealth v. Gee, 467 Pa. 123, 354 A.2d 875 (1976): 'The results of a polygraph examination are inadmissible for any purpose in Pennsylvania because the scientific reliability of such tests has not been sufficiently established.' Id. at 141, 354 A.2d at 883 (emphasis added)." Tp. of Silver Spring v. Thompson, 90 Pa. Commw. 456, 496 A.2d 72, 75 (1985).
"The mere exemption in 18 Pa. S. § 7321, a criminal statute, does not amount to a grant of power . . ." Marion v. Green, 95 Pa. Commw. 210, 505 A.2d 360, 363 (1986). In DeVito v. Civil Service Commission of the City of Philadelphia, 404 Pa. 354, 172 A.2d 161 (1961) the Pennsylvania "Supreme Court held that a Philadelphia police officer's refusal to submit to a polygraph test did not constitute just cause for dismissal where
. . . nowhere in the City Charter, the City Ordinances, the Civil Service Regulations, or the Police Department regulations is there a provision which authorizes the Police Commissioner or the Civil Service Commission, expressly or by implication, to force a city employee to submit to a polygraph or authorizes a dismissal for refusal to take such a test.
DeVito, 404 Pa. at 359-360, 172 A.2d at 174." Marion, 505 A.2d at 364.
DeVito has not been overruled by the passage of 18 Pa. C.S. § 7321. "Before the passage of 18 Pa. C.S. § 7321, no law prohibited the use of polygraph tests as a condition of employment or continued employment. The passage of the provision established a general proscription against the use of the polygraph by employers as a condition of employment, but it merely exempted law enforcement officials from that general proscription. Accordingly, the passage of the provision granted no further authorization to law enforcement officials regarding the use of the polygraph than they enjoyed before its passage." Marion, 505 A.2d at 364.
The testimony, exhibits and evidence presented at the trial failed to prove the reliability of polygraph tests in general. Plaintiffs' expert, Leonard Saxe has concluded that "the available studies do not permit generalizations about the accuracy of polygraph tests." (Exhibit D-7, "Umpiring Controversy," Leonard Saxe, p. 40), and "that there is considerable variability in accuracy rates of polygraph examinations" (Exhibit D-8, "The Validity of Polygraph Testing," Leonard Saxe, p. 362). "An examiner's skill has long been ...