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Carter v. City of Philadelphia

argued: January 5, 1993.

WARREN C. CARTER, APPELLANT
v.
CITY OF PHILADELPHIA; WILLIE L. WILLIAMS; ORVILLE W. JONES; LINDA L. SEYDA



Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Civ. No. 91-07502).

Before: Mansmann and Nygaard, Circuit Judges, and Rodriguez,*fn* District Judge.

Author: Mansmann

Opinion OF THE COURT

MANSMANN, Circuit Judge.

We address a conflict between the Pennsylvania Veterans' Preference Act, 51 Pa. Cons. Stat. Ann. § 7104(b), which confers a preference to armed forces veterans seeking civil service promotions, and Philadelphia Civil Service Regulation 9.024, which specifically denies veterans any favorable treatment in promotion considerations.

In a complaint filed in the Pennsylvania state courts, Philadelphia police officer Warren C. Carter alleged that, in violation of state and federal laws, the City of Philadelphia and its police department's administrative personnel failed to implement the Pennsylvania statute when he applied for promotion to the position of police sergeant. Count IV of the complaint, brought pursuant to 42 U.S.C. § 1983, asserted that the failure to utilize the Pennsylvania Veterans' Preference Act deprived Carter of a property right secured by the Constitution.

Because of the presence of the federal claim, the defendants removed the action to the United States District Court for the Eastern District of Pennsylvania. On a motion to dismiss, the district court held that the authority of local governments to legislate municipal functions, granted by the Home Rule Act, 53 Pa. Cons. Stat. Ann. § 13131 (1949), dictated enforcement supersedence to the Philadelphia Civil Service Regulations, overriding the state preference statute.

We will vacate and remand. The Pennsylvania Veterans' Preference Act explicitly directs that the preference is to be applied in all of the Commonwealth's political subdivisions. 51 Pa. Cons. Stat. Ann. § 7109. The Philadelphia Civil Service Regulation, repudiating the preference, is in conflict with state law and is therefore invalid.

In addition, the veteran's right to be granted the statutory preference is constitutionally protected. If it is denied, a cause of action under 42 U.S.C. § 1983 may arise.

I.

In an appeal from a district court's dismissal of an action, we accept all well-pleaded allegations of the complaint as true and construe them liberally in favor of the plaintiff. Gomez v. Toledo, 446 U.S. 635, 636 n.3 (1980). Particularly when a civil rights violation is alleged, we should not affirm a dismissal at the pleading stage, unless it is readily discerned that the facts cannot support entitlement to relief. Robb v. City of Philadelphia, 733 F.2d 286, 290 (3d Cir. 1984). With the plaintiff's position so favored, we recite the facts.

Warren C. Carter is a veteran of the armed forces and has been a Philadelphia police officer since 1969. On June 24, 1989, Carter took the civil service promotion examination for the position of police sergeant, received a passing grade and was ranked number 280 on the civil service promotion list.

One hundred twenty-five officers were promoted to sergeant in April, 1990. In August, 1990, the police department notified all individuals on the promotional list that they had the option of taking a special Spanish oral fluency examination. Carter did not take the exam. In June, 1991, 158 additional individuals were promoted to sergeant, including eight who had completed the Spanish examination. Six of these eight individuals ranked lower than Carter on the promotional list.*fn1 The list expired in November, 1991 without any further promotions.

Carter instituted this lawsuit on November 18, 1991 by filing a civil action in the Court of Common Pleas of Philadelphia County against the City of Philadelphia, the Police Commissioner, the Director of Personnel and the Acting Director of Personnel. In count IV of the complaint, Carter alleged that, in violation of 42 U.S.C. § 1983, the defendants, acting under color of state law, deprived him of property without due process of law. Carter asserted that a provision of the Pennsylvania Veterans' Preference Act, 51 Pa. Cons. Stat. Ann. § 7104(b),*fn2 entitles him, as a veteran, to a preference in promotion, that he had a property interest in this promotion and a legitimate claim of entitlement to it. Carter further claimed that the city's utilization of ยง 9.024 of the Philadelphia Civil Service ...


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