*1
Decided June *2 Malloy, appellants. Mari Anne Bryan Campbell, appellees. RODGERS, FRIEDMAN, JJ., and McGINLEY and
Before Judge. Senior
RODGERS, Judge. Senior and the Service Commis- Pittsburgh (City) Civil City (Commission) an City Pittsburgh appeal from sion Allegheny County Pleas order the Court Common filed petition a result of a handed down as was Police, Ellyn Lodge Pitt No. Glen Fort Fraternal Order FOP) a declarato- seeking (collectively Holler1 Regis Reid and City Coun- Pittsburgh injunctive and relief ry judgment part affirm of Ordinance 26. We cil’s enactment in part. reverse arbitra- a contract enactment of Ordinance
Prior to the award resulted and the FOP tion between the type a of en- elect the FOP’s senior members could years of fifty who are package. Members hanced retirement can receive of service twenty-five years and have age, retire Decem- they if pension benefit seventy-five percent City’s police ber, 31,1995. fifty percent almost Because senior, offi- force, experienced most mostly of the composed benefit, large cers, possibly faces for this qualify *3 in the experienced personnel the numbers of reduction in need, City To fill this the determined department. police hiring so as to allow for the procedure required a new was officers; thus, 26 was enacted. Ordinance experienced police certify to individu- 26 authorizes the Commission Ordinance to positions regard level officer without entry police als testing. service eligibility through on lists secured civil ranking minimum, that, police further at a provides The ordinance the competition require to be filled without positions officer experi- year to have at least one of law enforcement applicant as a officer or be police ence and to hold a current certification of certified officers able to such certification. This list obtain submit- alphabetized the is to be and compiled by Commission is then Safety, permitted ted to the Director of Public who list, on selecting relying background fill from this vacancies relevant employment experience, as to and investigations prior education, character, on any competi- but with no reliance and testing. tive Police, Lodge Pitt No. is the exclusive
1. The Fraternal Order of Fort City. police employed by the bargaining representative for all officers candidates, eligible applicants, presently a list of Holler are on Reid and passed tests offered the Commission who have written civil service police positions City. entry level officer in the enacted, eligibility Ordinance was valid At time that officer existed. police list of over 2000 candidates applicants certified officers and without This list included both list of Ordinance a second experience. passage With (The created, of certified officers. containing only was names already existing are on the plaintiffs applicants individual here experience they list, having prior no work eligibility police but meet established for Ordinance requirements do not list.) June,
In to the dictates of Ordinance pursuant public the Commission that Safety Director Public notified of certified officers safety required appointment A sixty fill on the force. list competition to vacancies without require- met the minimum applicants of more than 200 Director; to the none of ments of Ordinance 26 was submitted Thirty tested or ranked. condition- applicants these had been At were extended. this employment point al offers filed action. present FOP trial request
The issues raised the FOP in their to the (1) injunctive and relief were: whether declaratory court for can that directs the enact an ordinance Commission list of Safety to the Director of Public compile and submit the minimum as stated applicants requirements who meet certification; 26, i.e., experience and one-year Ordinance (2) can enact that directs that whether the an ordinance unranked, Public allowing list the Director of applicant this Safety applicant on that list. hire raised, response
In to the first issue the trial court ex- *4 City, municipality, having that as home rule plained Optional the Home Rule Charter and Plans Law adopted (Home Law),2 unless Rule enact ordinance may the ordinance involves exercise of denied to Constitution, own or an Pennsylvania City’s charter Assembly. act of the The trial that opined General Constitution, charter or an act nothing City’s Pittsburgh enacting General “bars 13, 1972, amended, April §§ as 1-101-1-1309. 2. Act 53 P.S. police for minimum qualifications adopts that an ordinance experi- law enforcement prior require officer which positions dual certifica- permits or that certification/training ence and additional impose to these is a need tion lists when there 7.) (Trial The trial court Opinion, p. Court requirements.” supple- that ordinances City may enact indicated that the also list having a second and that legislation civil service ment conflict does not police officers only experienced comprised second legislation governing of civil service purposes with the class cities. court, it discussing what note that the trial
We
applicable
civil service law
controlling
to be the
believes
cities,
14 of the General Civil
refers to Section
second class
officer
Law,3
entry
police
level
provides
which
Service
one
selecting
police departments,
shall
filled
positions
top
appropri
at the
of an
applicants
from the three
candidate
however,
section,
repealed
has been
as
This
eligibility
ate
list.
in cities of the second class
police
bureaus of
employees
Therefore,
Act.4
where
by the Policemen’s Civil Service
specifically
Act deals
of the Policemen’s Civil Service
provision
matter,
Civil
particular
provision
with a
subject
not
specific
is
dealing
Act
with the same
Civil
city.
second class
police
officers of a
applicable
Paieski, 126 Pa.Commonwealth Ct.
Service Commission
appeal
allowance
petition
263,
559 A.2d
(1990).
denied,
524 Pa.
Concerning the the Commission’s by disallowing relief request injunctive amended, 23, 1907, § 23446. May as 3. Act of P.L. amended, §§ P.S. 23531- August 4. Act of P.L. *5 88 alphabetical of an unranked list and the Director
submission list, a the trial court stated Safety’s hiring Public from such Rule under Section 301 of the Home that 1-301, powers ‘not denied City may only § “the exercise ” (Trial p. any Opinion, at time’ Court 10) is that legislation legislation and civil service such that Moreover, the trial court reasoned City’s power. limits the any- explicit language because the could not show that “legislation in the law it gave supersede where that may in which a exercise restricting municipality manner Legislature it reasonable to assume that the powers, [was] its exercise of preserve existing restrictions on the intended 13.) (Trial Thus, the Opinion, Court municipal power.” p. that erroneously concluded enactments trial every municipality that did not within legislature apply Commonwealth, laws, apply- one such as the civil service each laws a series of separate municipality through to a class of ing statute, encompassing prevent than an all could still rather ordi- enacting a home rule an municipality limit charter Assembly. that acts of supersede nance would General hearing, portion the trial court ordered that the After the Commission to create a second permitting Ordinance stand, certified could issued an only list of officers but their hiring of such officers without injunction prohibiting the testing. after trial court’s order being competitive ranked required subsequent comply also that selection with Section The City of the General Civil Law. and the Commis- this to this Court. appeal sion order has the The issue to be decided here is whether the under the Home Rule Charter Law to enact authority civil supersedes that or is inconsistent with the ordinance to cities of class. service law the second our of the begin analysis by examining portion We forth powers granted Rule Charter Law that sets Home adopt chosen to home rule charter. municipality has 1-301, Home Rule Charter states: charter a home rule adopted has
A municipality not function any powers perform may exercise *6 rule Pennsylvania, by its home of by denied the Constitution All grants time. Assembly at by or the General charter by a home governed municipalities municipal power of act, form of specific the under this whether rule charter terms, liberally construed or shall general enumeration municipality. in favor of the is Thus, power] “that the exercise [of a exists presumption Constitution, the charter if is found valid no restriction itself, Assembly.” Norristown the acts of the General or Police, Lodge DeAngelis, 31 v. Fraternal Order of (1992). 285, 291-92, A.2d Ct. Pa.Commonwealth legislative that the boundaries opined Norristown court The legislature intended 301 indicate that found within Section municipality permitted not be that a home rule charter legislation. state supersede exam- however, not end here. We next analysis,
The does § 1- 302 of the Home Rule Charter ine Section delineates the specifically of the act that more portion has legislature The municipality’s powers. limitations on a municipality a home rule charter subject areas in which listed authority. The of any power portions or given has not been us, to the issue before state: relevant (ii) (b) contrary ... powers exercise municipality No shall acts to, powers granted by enlargement limitation or in every part are which (v) Commonwealth, inconsis- any provision ... enact enacted any statute heretofore tent with condi- working benefits or Assembly affecting rights, subdivision of the Com- any employe political tions of of a monwealth. in which 302 established the areas
The enactment of Section municipalities control the would continue to legislature example Norristown decision is an the Commonwealth. legislation that the area of state interpretation this Court’s cannot be promotions superseded with officer dealing ap- Norristown glance enactment. At first municipality’s similar to the issue raised is because controlling to be pears find, However, examination we on closer here. the one raised The fact that Norristown court, inapposite. the trial as did class than a second borough’s rather Norristown dealt with a moment, distinction but the is of no city’s exercise issue in Norristown at promotions present employee between at issue here new personnel appointment than the rather to our decision. paramount municipali- employees
Norristown
present
concerned
of Section
therefore,
and,
parameters
fell within
ty
prohibits
302(b)(v)
the Home Rule Charter
enacted
statutory protections
interference with
municipality’s
working
benefits
rights,
affect
legislature
result,
service
the civil
As a
employees.
of its
conditions
*7
(Code)5
the munici-
control and
Borough
of the
Code
sections
pro-
the
apply
that
to
those sections
by
was limited
pality
fighters.
and fire
officers
police
motion of its
Union,
Commis
No. 1 v. Civil Service
Local
Fighters,
Fire
498, 545
Ct.
Pittsburgh,
118 Pa.Commonwealth
sion
(1990),
278,
Again holding Fighters Norristown, but, as in we our decision here control appear Fighters us. Fire distinguish it from case before can department, and within the possibilities promotion concerned present employees. we are not concerned with here attempts only applicants affect City’s Ordinance 302(b)(v) force; therefore, police positions with the by a prohibits enactments the Home Rule Charter applicable. is not employees, that affect municipality 302(b)(v) prevent that Section cannot Having concluded we must examine whether enactment Ordinance City’s every that Assembly, are any acts uniform and applicable or are part Commonwealth7 Commonwealth,8 can throughout prevent enacting Ordinance 26. that Civil Law argues
The FOP the General Act passed Policemen’s Civil Service are statutes and the prevent City’s enactment of appoint officer they 26 because intend Ordinance objective class based on ments cities the second according to a testing with selection effectuated competitive *8 However, question ranking. relevant candidate’s Policemen’s Civil Service Law and the whether the General 302(b)(ii) § Home Rule 1-302 7. Section above). (quoted l-302(c), 302(c) § 53 of the Home Rule Charter P.S. states: (c) Assembly date of this Acts in effect on the effective applicable throughout the Commonwealth that are uniform and act changed or this in effect and shall not be modified shall remain Assembly the effective date of act. enacted after Acts applicable throughout Common- act are uniform and this supersede any municipal or on the wealth ordinance resolution shall subject. same 92 Assembly
Civil Service Act are acts of the General which are in every part throughout uniform and of or Commonwealth. party phrase
Neither has cited cases that construe the or “uniform “applicable every part the Commonwealth” as applicable throughout they pertain Commonwealth” class, any. to cities of the second nor have we located We must, therefore, rely interpretations phrases on of these as they enabling are used in the act for cities of the first class. See First Class (FCCHRA), April Home Rule Act Act of amended, 21, 1949, 665, §§ P.L. 53 13101-13157. P.S. Case, appeal Addison 48, (1956), In 122 385 Pa. A.2d 272 dismissed, 353, (1957), 956, 1 352 U.S. 77 S.Ct. L.Ed.2d 316 jurisdic- the court was confronted with an issue concerning tion and an pleas appeal the court common to hear (a aggrieved city patrolman) from a decision employee board; of the civil service it was that an specifically, argued act9 that allegedly applicability superseded had state-wide section of the home rule charter10 because Section 18 of the FCCHRA, 13133, § prevented city P.S. “exer- to, of, cising] powers contrary enlargement or limitation or powers granted by act of the General which are ... Commonwealth, (b) (c) Applicable every part Appli- Id. at cable to all the cities of the Commonwealth.” A.2d at 274. Clark,
The Addison
court,
citing Lennox
Pa.
Tate,
overruled on
grounds,
other
Walsh v.
A.2d 834
.1654,
September
provided
9. Act of
P.L.
any city
decisions of the civil service boards and commissions in
"[a]ll
subject
appeal
pleas
county
shall be
to the court of common
or the
county
city
appeal may
court of the
in which the
is located. The
taken, by any employee aggrieved thereby,
any
thirty
at
time within
Addison,
days after the decision has been entered of record.”
385 Pa.
53-54,
at
93 (1971), held the removal 284 that Pa. 282 A.2d 444 but a state-wide matter one city not discharge employee of a thus, concern; provision charter the home rule only of local The Addison general not the statute. prevails and that: explained power the limitations of clear that being abundantly
[I]t only concern in 18 the [of FCCHRA] referred to section con- in to matters of State-wide laws relation substantive cern, health, security general welfare such the and safety, State, not to matters all inhabitants of the and of the of and the affecting merely personnel the administration no to which are of concern Philadelphia offices and local would reduce the Any other conclusion citizens elsewhere. much and make the scrap paper a mere and home rule an illusion Philadelphia heralded grant nullity.
Addison, at 122 at 275 Chief Justice (quoting Pa. A.2d 385 845) Lennox, in (emphasis 93 A.2d at in Pa. at Stern Thus, in home rule Philadelphia’s original). provision prevailed. charter Cabell, 513, 185 A.2d Pa.Superior Ct.
Commonwealth issues concerned case where one is another 18(c) prohibited Philadelphia’s of FCCHRA whether Section contrary its that was acts through charter power exercise argued Cabell Assembly. Specifically, invali legislature enacted various civil service statutes makes fraud civil provision charter Philadelphia’s dated fines can imprisonment for which and testing service crime the trial court set out the imposed by city. Although time, finding at them service acts effect numerous civil and, thus, limiting city exercising controlling that these civil Superior Court held impose penalties, nor uniform throughout were not identical service statutes is hard to “[i]t The Cabell court stated that Commonwealth. acts, each of city, varying how one for class see this series stat separate concerned with the violation penalty to all utes, granted power ‘[a]pplicable as a can be construed ” 524, 185 at at 617. Commonwealth.’ Id. A.2d the cities *10 in opinion Chief Justice Stern’s quoted The Cabell then Lennox, as we have above. in is to the issue before us reasoning germane Cabell represents The civil service laws that the FOP
today. legislature not statutes controlling here are enacted the Commonwealth. apply municipalities throughout to all above, 14 we have noted of the General Civil As Law, appoint § provides 53 P.S. exami competitive ranking through ments from the class with nation, in police as to in bureaus of repealed employees is Act, cities of the second class the Policemen’s Civil Service 23531-23540, §§ applicable only which is cities Cabell, in Following reasoning the second class. neither Service Law nor the Policemen’s Civil Ser General Civil Act can be held to in the Commonw apply every part vice ealth,11 Thus, 26 is City’s we hold that the enactment Ordinance not 302 of the Home Rule Charter prohibited by Section it is not of the contrary Assembly because acts General every part in of the Commonwealth. We affirm the permitting trial court’s order the Commission to create a consisting only police second list certified officers. Howev- er, injunction we the trial court’s issuance of the reverse hiring ranking of these certified officers without prohibits through competitive testing. expressed
The trial court concern that Ordinance 26 unwise- ly grants Safety to the Director of Public the discretion to hire Commission, ranking by through certified officers without However, competitive testing, measured test scores. it is any experienced police not claimed that of the officers on the desired, list is If eligibility unqualified. Ordinance law, legislature may amend the or the Home Rule Charter Bradford, Greenberg 11. See also Pa. A.2d 51 Court, Lennox, (1968). Greenberg, relying Supreme In on held that city adopted pursuant Optional a third class that had a charter to the 15, 1957, July Third Act of P.L. Class required compensation was not to adhere to standards fighters and fire established in acts of the General pertaining to third class cities. may agreement amended, bargaining collective or the bemay policy not event, of such a In the wisdom be altered. Court. by this question to be decided in this J., the decision PELLEGRINI, participate not did case.
ORDER of Common NOW, 15, 1994, Court the order June 92-19421, Janu- dated County, at No. GS Allegheny Pleas part, consis- and reversed part is affirmed ary *11 foregoing opinion. tent with the McGINLEY, Judge, dissenting. majority’s con- disagree I with respectfully
I dissent. Service of Civil the General provisions clusion that neither Act, require Service or Policemen’s Civil competi- through officer candidates ranking eligible police of Rather, with the agree I Pittsburgh. testing, apply tive Rule 301 of the Home of Section purpose trial court that the to exer- municipality a home rule which allows by the not denied perform any functions any cise powers Assembly’s to restrict the General Assembly, was not General the manner limit, through legislation, ability to civil service See Opinion of the Court City employees. which the hires its Pleas, at 13-14. of Common November Union, 1 v. No. Civil Fighters, Local Furthermore, Fire Pittsburgh, 118 Pa. Common- Service Commission of 524 Pa. Ct. 545 A.2d wealth affirmed similar issue (1990), this addressed a A.2d 377 Court city, may a home-rule Pittsburgh, whether competitive service statute’s a civil lawfully applying avoid newly-created “assistant” two provisions selection This noted Section fire chief. Court directly under the 302(b)(v) the city’s limits Rule Charter Law Home as follows: personnel management (b) (v) ... municipality any provision No shall enact incon- sistent with any statute heretofore enacted benefits, rights, affecting working condi- tions political of a subdivision of employee Commonwealth. l-302(b)(v). P.S.
Because the civil statute as a qualified prior service statute all affecting rights employees other than the fire chief clerk, ordinance, and chief we held that the City’s proposed statute, which was inconsistent with the civil service was therefore invalid.
I Fighters controlling believe that Fire the present that, controversy and I hold pursuant would 302(b)(v) Charter, Rule the Home Ordinance No. 26 is invalid as being competitive inconsistent with the selection Civil Law and provisions General Service the Police- men’s Civil Act.1
I would affirm trial court.
OF *12 MORRISVILLE EDUCATION ASSOCIATION. Pennsylvania.
Commonwealth Court of Argued May 1994.
Decided June
1994.
302(b)(v)
Fighters
In
Fire
we
noted that the
also
limitation
applies
scope
when
civil
new
service statute is
bureau-wide,
present
as it is in the
case. 118 Pa.Commonwealth Ct. at
505,