PHILADELPHIA FIREFIGHTERS' UNION, LOCAL 22, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, AFL-CIO BY ITS GUARDIAN A.D. LITEM WILLIAM GAULT, PRESIDENT, TIM MCSHEA, VICE PRESIDENT, KELVIN FONG, VICE PRESIDENT, AND FIRE LIEUTENANT ANDREW THOMAS, Appellants
CITY OF PHILADELPHIA, MAYOR MICHAEL A. NUTTER, RICHARD NEGRIN, LLOYD AYERS, Appellees
Argued: March 10, 2015.
Appeal from the order of the Commonwealth Court entered on September 18, 2013 at No. 869 C.D. 2013 reversing the order entered on May 14, 2013 in the Court of Common Pleas, Civil Division, Philadelphia County at No. 1039 May Term 2013. Appeal allowed: May 13, 2014 at 633 EAL 2013. Trial Court Judge: Leon W. Tucker, Judge. Intermediate Court Judges: Dan Pellegrini, Robert E. Simpson, Patricia A. McCullough, JJ. .
For Gault, William, APPELLANT Thomas, Andrew, APPELLANT Philadelphia Firefighters' Union, Local 22, International Assoc. of Firefighters, AFL-CIO, APPELLANT McShea, Tim, Appellant Fong, Kelvin, APPELLANT: Joseph T. Cleary, Esq. Cleary, Josem & Trigiani, LLP; Cassie R. Ehrenberg, Esq. Cleary, Josem & Trigiani, LLP; Regina C. Hertzig, Esq. Cleary Josem & Trigiani, L.L.P.
For International Association of Fire Fighters, APPELLANT AMICUS CURIAE: Diana Jane Nobile, Esq. Woodley & McGillivary; Douglas L. Steele, Esq. Woodley & McGillivary; Thomas A. Woodley, Esq. Woodley & McGillivary.
For Nutter, Michael A., APPELLEE Ayers, Lloyd, APPELLEE Negrin, Richard, APPELLEE City of Philadelphia, APPELLEE: Elise Michelle Bruhl, Esq.
SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ. MR. JUSTICE BAER. Mr. Chief Justice Saylor, Mr. Justice Eakin and Madame Justice Todd join the opinion. Mr. Justice Stevens files a concurring opinion. MR. JUSTICE STEVENS.
MR. BAER, JUSTICE.
The International Association of Firefighters, Local 22, AFL-CIO, and its named officers (collectively, the Union) is the collective bargaining unit representing the City of Philadelphia's firefighters and paramedics. It appeals from the order of the Commonwealth Court, which reversed the trial court's grant of peremptory judgment in mandamus for the Union and against the City of Philadelphia, Mayor Michael A. Nutter, Richard Negrin, and Lloyd Ayers (collectively, the City), and required the City to fill vacancies immediately in the positions of Fire Captain and Fire Lieutenant. The Commonwealth Court held that neither the Home Rule Charter, 351 Pa.Code § § 1.100 et seq, nor the Civil Service Regulations require vacancies to be filled immediately. We agree, and hold that the Union has not established a clear legal right to relief or a corresponding duty in the City, and that it is therefore not entitled to peremptory judgment in mandamus.
Union members are subject to Philadelphia's Civil Service Regulations, which comprise the procedures for hiring and promotion in the City in accord with the Home Rule Charter. The Home Rule Charter directs that Civil Service Regulations " shall provide for" promotions which " give appropriate consideration to the applicant's qualifications, record of performance, seniority and conduct." 351 Pa.Code § 7.7-400. Moreover, " [v]acancies shall be filled by promotion whenever possible, and promotion shall be on a competitive basis except where the Personnel Director with the approval of the Civil Service Commission finds that competition is impracticable." Id., § 7.7-401(e).
Moreover, the Home Rule Charter requires " the establishment of eligible lists for appointment and promotion," the ranking of eligible candidates in order of their performance on civil service examinations, and directs that such lists " shall continue in force for at least one year . . . until exhausted or replaced by more recently prepared lists but in no case longer than
two years." Id., § 7.7-401(f). The Home Rule Charter further requires the City to certify the two candidates with the highest standing on the appropriate eligible list to fill a vacancy, and directs that after a candidate has been rejected twice by an appointing authority in favor of other candidates, that candidate can no longer be certified. Id., § 7.7-401(h).
The Home Rule Charter calls for the promulgation of Civil Service Regulations " to establish for the City a system of personnel administration based on merit principles and scientific methods governing the appointment, promotion, demotion, transfer, layoff, removal and discipline of its employees, and other incidents of City employment." 351 Pa.Code § 7.7-300. Moreover, " [a]ll appointments and promotions to positions in the civil service shall be made in accordance with the civil service regulations." Id. The Civil Service Regulations apply to firefighters in Philadelphia. Phila. Civil Serv. Reg. 2.06.
Pursuant to the Civil Service Regulations, promotions are made from a " promotional list," which is defined as " an eligible list of names of persons who have passed a promotional examination for a particular class of position and whose names are ranked on the list in the order prescribed in these Regulations." Phila. Civil Serv. Reg. 2.38; see also id. 10.013 (providing that a " promotional eligible list" is " [c]omprised of all qualified candidates who have permanent civil service status and who have passed an examination and are ranked in order of relative excellence." ). Eligible candidates receive their ranking based on test scores and a number of other factors, including interviews, prior performance, and veteran's status. Phila. Civil Serv. Reg. 2.38, 2.39, 9.02, 9.022, 9.023, 10.013.
Once the City approves and publishes a promotional list of candidates, those candidates " may be certified and appointed at any time . . . until the list expires or is exhausted or cancelled." Phila. Civil Serv. Reg. 10.022. Moreover, the Director of Human Resources for the City of Philadelphia (Director) " may publish a List of Candidates and establish an eligible list at separate times or simultaneously as deemed necessary or desirable to meet the needs of the service." Id. A promotional list continues in force until it is exhausted or replaced, " but in no case longer than two years." Id., 10.071. When a more recent promotional list has been established, the Director may cancel a previous promotional list that is more than a year old, and replace it with the more recent list or consolidate them under certain conditions. Id. An eligible candidate remaining on a prior list that has expired may take a new examination for placement on a new promotional list. Phila. Civil Serv. Reg. 10.081.
Pursuant to Regulation 9.021, " [u]nless vacancies are filled by demotion, transfer, reinstatement, or by certification from a layoff list, they shall be filled so far as practicable by the promotion of permanent employees in the Civil Service." Phila. Civ. Serv. Reg. 9.021. To fill a vacancy by promotion in the Fire Department, the Fire Commissioner (Commissioner) requests the Director to certify, with certain qualifications, the top two candidates from the promotional list for that position. Id., 11.091, 11.03. The Commissioner may choose either of the two candidates. Id. If the Commissioner wishes to fill more than one vacancy at a time, he may request the
Director to certify a set of candidates for the positions. Id., 11.04.
A candidate who is rejected for promotion is returned to the promotional list; like the Home Rule Charter, the regulations provide that two rejections will result in no further referrals to the Commissioner by the Director. Phila. Civil Serv. Reg. 11.05. The promotion of a candidate who is selected by the Commissioner is subject to approval by the Director and is conditional on the candidate passing a medical examination. Id., 11.035, 11.11, 11.12, 9.1413. During a six-month probationary period, the Commissioner has the ...