Appeal from the Order of the Court of Common Pleas of Lackawanna County, in the case of Taxpayers of the City of Carbondale, et al. v. City of Carbondale, No. 87 Equity 1.
Anthony C. Busillo, II, for appellants.
Armand E. Olivetti, Jr., Olivetti & Scacchitti, for appellee.
Judges Doyle, Barry and McGinley, sitting as a panel of three. Opinion by Judge Barry. Judge MacPhail did not participate in the decision in this case. Concurring Opinion by Judge Doyle.
[ 123 Pa. Commw. Page 21]
Thirteen members of the Police Department of the City of Carbondale who are also taxpayers of that city, (appellants), appeal from an order of the Court of Common Pleas of Lackawanna County which vacated a decree nisi enjoining the City of Carbondale (City), its city council, its mayor and its treasurer from paying monies to Alan B. Clements for work performed as the City's Chief of Police and from paying monies into a police pension fund on behalf of Mr. Clements.
The City, a Home Rule Charter Municipality under the Home Rule Charter and Optional Plans Law, Act of April 13, 1972, P.L. 184, as amended, 53 P.S. § 1-101-1-1309, and Mr. Clements entered into a management employment contract for a period of five years beginning on May 13, 1986. Mr. Clements, not a member of the City's Police Department, was assigned the duties of Chief of Police and assumed those duties without taking a civil service examination. On January 9, 1987, the appellants filed an equity action seeking to enjoin the payment of monies to Mr. Clements for work performed as Chief of Police and from paying monies into the City's police pension fund on his behalf. They alleged, inter alia, that since Mr. Clements had taken neither a civil service examination nor a physical examination, his appointment to the position of Chief of Police was in violation of Article XLIV of the Third Class City Code, Act of June 23, 1931, P.L. 932, as amended, 53 P.S. §§ 39401-39410, as well as Rules 2 and 3 of the City's Civil Service Rules. The chancellor, on February 9, 1987, entered a decree nisi which granted such injunctive relief.*fn1
[ 123 Pa. Commw. Page 22]
Following the entry of the decree nisi, Mr. Clements, along with Mr. John J. Gilgallon, took a civil service examination administered by the City for the position of Chief of Police. He achieved a score of 65%, while Mr. Gilgallon achieved a score of 49%. Because Mr. Clements was an honorably discharged veteran, he was allowed an additional fifteen percentage points towards his examination score pursuant to Section 7103(b) of the Military Code (Code), 51 Pa. C.S. § 7103(b).*fn2 This allowance resulted in Mr. Clements obtaining a final score of 80%, which, unlike a score of 65%, was a passing score under the City's civil service rules.
After the examination results were announced, the appellees filed a motion to vacate the decree nisi since Mr. Clements had taken the civil service examination and had passed it. That motion was granted by the chancellor. This appeal then followed.
[ 123 Pa. Commw. Page 23]
It is the appellants' contention that the chancellor erred when he concluded that the allowance to Mr. Clements of an additional fifteen percentage points on the civil service examination was proper, even though otherwise he would have failed the examination. Appellants also argue that Section 7103(b) of the Code is an unconstitutional statute if it applies to examinations other than those for entry level positions. The appellees, in addition to arguing that the allowance of veteran's preference points to Mr. Clements does not violate either the federal or state constitution, argue that the appellants lack standing to challenge the constitutionality of such an award.
Although the issue of standing was not addressed by the chancellor in his opinion, it was raised by the appellees in a reply brief filed with the chancellor, in support of the motion to vacate the decree nisi. The appellants, relying upon an opinion letter by the Attorney General dated June 15, 1976, Opinions of the Attorney General, No. 76-17, had asserted for the first time in their brief in opposition to the motion to vacate that the allowance of an additional fifteen preference points pursuant to Section 7103(b) of the Code violates Article ...