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Borough of Wilkinsburg v. Colella

November 26, 2008

BOROUGH OF WILKINSBURG, APPELLANT
v.
RICHARD COLELLA AND CIVIL SERVICE COMMISSION OF WILKINSBURG BOROUGH



The opinion of the court was delivered by: Judge Simpson

Argued: October 16, 2008

BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JIM FLAHERTY, Senior Judge

OPINION

In this civil service appeal, we decide whether a borough must select the top-scoring applicant for promotion, or whether it may choose from a list of the three highest scoring applicants. In particular, Wilkinsburg Borough (Borough) appeals a decision of the Court of Common Pleas of Allegheny County (trial court) that sustained the statutory appeal of Richard Colella, the top-scoring applicant, thereby requiring his appointment as Captain of the Borough Fire Department. Concluding that promotions require the appointment of the top-scoring applicant, we affirm.

Borough employed Colella since 1993 in its fire department. Colella served as the Department's Chief Engineer since 1998. In December 2005, the Department held an examination to establish an eligibility list for the vacant Captain's position. Candidates for a vacant position receive a score based on their performance on written and oral portions of the examination. Candidates are then ranked by score and listed on the eligibility list for promotion. Colella received a score of 82.28, the highest score for the Captain's position. Acting Captain Theodore Hale also took the examination, scoring 75.5, ranking him second. Borough subsequently appointed Acting Captain to the position of Captain. Colella filed a statutory appeal of the decision to the trial court. The trial court sustained Colella's objections and directed Borough to promote Colella to the position of Captain.

The trial court concluded Borough was statutorily obligated to promote the top-scoring candidate on the eligibility list. The trial court interpreted Section 1188 of the Borough Code*fn1 to require promotions to be based solely on the outcome of the examination. Therefore, the Borough had no discretion to choose from the three highest scorers on the eligibility list when filling the vacant Captain's position by promotion.

On appeal,*fn2 Borough first argues the trial court's decision is not supported by substantial evidence. Borough points to evidence supporting a contrary result to that reached by the trial court, including evidence of past practice, Borough Civil Service Rules 43A (promotion shall be in accordance with Section 1188 of the Borough Code; promotional process shall be conducted to establish eligibility lists in accordance with Borough Code) and 45A (minimum score for placement on promotional eligibility list), and provisions of the Borough Code. Borough argues the evidence before the trial court established the Borough enjoyed discretion; thus, the trial court erred when it concluded otherwise.

In addition, Borough argues the trial court erred by not interpreting the appointment procedures in Section 1184 of the Borough Code, 53 P.S. § 46184, to apply to promotions. Section 1184 provides for the discretionary selection of one of the three highest scoring applicants on the eligibility list-the process Borough followed here. Borough argues Section 1184 applies to the filling of all vacancies. Borough reasons because a promotion cannot occur without a vacancy, and Section 1184 applies to all vacancies, the discretionary approach of Section 1184 governs promotions.

Finally, Borough contends the trial court erred by misinterpreting controlling case law. Borough relies on Coles v. Judd, 298 A.2d 687 (Pa. Cmwlth. 1973), for the case's interpretation of the then-extant version of Section 1184 of the Borough Code. Coles held the discretionary selection of one of a list of three highest scoring candidates to be legitimate for promotions under the Borough Code. Though Section 1184 was subsequently amended after the Coles decision, Borough argues the case still allows the discretionary approach for promotions.

We must decide whether the trial court erred in interpreting Sections 1184 and 1188 of the Borough Code. Section 1184(a) states, in pertinent part:

[E]very original position or employment in the police force or as paid operators of fire apparatus, except that of chief of police or chief of the fire department, or equivalent, shall be filled only in the following manner: the council shall notify the commission of any vacancy which is to be filled and shall request the certification of a list of eligibles. The commission shall certify for each existing vacancy from the eligible list, the names of three persons thereon, or a lesser number where three are not available, who have received the highest average. The council shall thereupon, with sole reference to the merits and fitness of the candidates, make an appointment from the three names certified ..

53 P.S. § 46184(a) (emphasis added). In contrast, Section 1188 provides, in pertinent part:

Promotions shall be based on merit to be ascertained by examinations to be prescribed by the commission. All questions relative to promotions shall be practical in character and such as will fairly test ...


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