Appeal from Common Pleas Court, Allegheny County, Honorable Robert A. Doyle, SEN. JUDGE.
Judith W. Spain, Asst. City Sol., D.R. Pellegrini, City Sol., Joseph Quinn, Pittsburgh, for appellant.
Bryan Campbell, Pittsburgh, for appellee.
Crumlish, Jr., President Judge, and Craig, Doyle, Barry, Colins, McGinley and Smith, JJ. Craig, Judge, concurring and dissenting.
[ 126 Pa. Commw. Page 264]
This is an appeal by the City of Pittsburgh (City) from an order of the Court of Common Pleas of Allegheny County which reversed the action of the Pittsburgh Civil Service Commission (Commission) which upheld the removal of Joseph R. Paieski's name from the certified list of employees eligible for promotion to police sergeant.
The facts appear to be undisputed. The City's Police Superintendent desired to promote fourteen individuals to available positions as police sergeants. The Commission certified to him the names of five persons to fill three
[ 126 Pa. Commw. Page 265]
"minority" vacancies and twenty persons, including Paieski, to fill eleven "white male" vacancies.*fn1 Paieski was not chosen for any one of the positions. Subsequent to the selection process, Paieski received a letter from the Commission indicating that because he had been passed over for promotion three times his name was being removed from the eligible list.*fn2 Paieski requested a hearing before the Commission which was granted. The Commission upheld the removal of Paieski's name from the list. Appeal to the common pleas court followed and the Commission's determination was reversed. The City then took the instant appeal to this Court.
At issue here is the certification procedure employed by the Commission. Pursuant to Section 6 of the Act of August 10, 1951, P.L. 1189, as amended, 53 P.S. § 23535, commonly known as the Policemen's Civil Service Act, vacancies for police officers in second class cities are to be filled by promotion as follows:
[ 126 Pa. Commw. Page 266]
Vacancies in positions in the competitive class shall be filled by promotions from among persons holding positions in a lower grade in the bureau of police. Promotions shall be based upon merit to be ascertained by tests to be provided by the civil service commission and upon the superior qualifications of the person to be promoted as shown by his previous service and experience. The civil service commission shall maintain a list of those persons qualified for promotion to the next superior position, from which list the director of the department of public safety*fn3 shall make all promotions from among the first four names appearing on the list at the time the promotion is to be made. The civil service commission shall have the power to determine in each instance whether an increase in salary constitutes a promotion. (Emphasis added.)
As can be seen, this statute does not specifically address the certification procedure to be followed where there are multiple vacancies to be filled simultaneously. Further, it does not authorize the removal of any eligible name from the list once an employee has been passed over for promotion.
The Commission, in this instance, instead of certifying four eligibles at a time, certified twenty eligible names for eleven "white male" positions. In so doing it followed its own regulation which provides:
If there be more than one vacancy in the competitive class to be filled, certification and appointment shall be made for each of such vacancies in the same manner as for a single vacancy; but in order to expedite the making of multiple appointments, the Civil Service Commission may, at its discretion certify to the appointing officer the largest number of names which would be certified were appointments to be made singly, e.g.,
[ 126 Pa. Commw. Page 267]
The appointing officer shall, upon that certification, make appointments to fill all of the vacancies at the same time, appointing only such persons upon the list as would have been selected had he/she made the appointments one at a time upon separate requisition and certification, and charging to each eligible name its due number of rejections in the manner prescribed in Section 14 of the General Civil Service Act, as amended.
Commission Rule VI (emphasis added).
Paieski contends that the procedure employed by the Commission is invalid because it is in conflict with Section 14 of the Act of May 23, 1907, P.L. 206, as amended, 53 P.S. § 23446, the General Civil Service Act. That Section provides as follows:
Every position or employment in the competitive class, unless filled by promotion, transfer, reinstatement, or reduction, shall be filled only in the following manner: The appointing officer shall notify the civil service commission of any vacancy in the service which he desires to fill, and shall request the certification of eligibles. The commission shall forthwith certify, from the appropriate eligible list, the names of the three persons thereon who received the highest averages at examinations held under the provisions of this act. The appointing officer shall, thereupon, with sole reference to the relative merit and fitness of the candidates, make an appointment from the three names so certified: Provided, however, That should
[ 126 Pa. Commw. Page 268]
he make objection, to the commission, to one or more of these persons, for any of the reasons stated in section ten of this act, and should such objections be sustained by the commission, the commission shall thereupon strike the name of such person from the eligible list, and certify the next highest name for each person so stricken off. As each subsequent vacancy occurs, in the same or a similar position, precisely the same procedure shall be followed: Provided, however, That after any name has been three times rejected, for the same or a similar position, in favor of a name or names below it on the same list, the said name shall be stricken from the list. When there are a number of positions of the same kind to be filled at the same time, each appointment shall, nevertheless, be made separately and in accordance with the foregoing provisions . . . . (Emphasis added.)
This Act is the General Civil Service Act governing classified civil service employees in cities of the second class and was enacted in 1907. The Policemen's Civil Service Act governs police officers of ...