McGrath, Appellant, v. Staisey.
Supreme Court of Pennsylvania
November 27, 1968
Rehearing refused February 6, 1969.
Judgment affirmed by an equally divided court.
Mr. Justice MUSMANNO did not participate in the decision of this case.
DISSENTING OPINION BY MR. JUSTICE EAGEN:
The lower court entered judgment for the defendants notwithstanding the jury‘s verdict in favor of the plaintiff. The court felt that the evidence established that the plaintiff was guilty of contributory negligence as a matter of law. In my view, this disposition was erroneous.
It is fundamental that contributory negligence exists as a matter of law only where there is no reasonable basis for holding otherwise under the facts of the case. Cushey v. Plunkard, 413 Pa. 116, 196 A. 2d 295 (1964). I am not convinced that under all of the circumstances disclosed by the evidence in the instant case that there is no room for “fair and reasonable disagreement” as to the plaintiff‘s negligence.
I dissent, and would reverse the judgment of the lower court and would enter judgment on the verdict returned by the jury.
Mr. Justice O‘BRIEN and Mr. Justice ROBERTS join in this dissent.
McGrath, Appellant, v. Staisey.
reargument refused February 6, 1969.
James L. Weisman, with him Samuel Avins, and Avins & Weisman, for appellant.
Francis A. Barry, First Assistant County Solicitor, with him David J. Greenberg, Assistant County Solicitor, and Maurice Louik, County Solicitor, for appellees.
On June 12, 1965 appellant, a patrolman in the Allegheny County Bureau of Police, took a competitive written civil service examination for a promotion to the position of sergeant. The examination was administered by the Civil Service Commission for Allegheny Police and Firemen. Appellant attained the third highest grade on the test and was properly placed third on the eligible list submitted by the Civil Service to the County Commissioners; this list was to remain in effect for two years. During that two year period three positions for sergeant were filled, by the patrolmen achieving the first, fourth and fifth highest grades on the examination. Appellant then instituted this mandamus action to compel his promotion by the County Commissioners to the rank of sergeant and to award damages for the difference in pay he would have received as a sergeant since June 12, 1967. Appellees filed preliminary objections in the form of a demurrer contending that appellant had failed to state a cause of action. This demurrer was sustained and appellant took this appeal.
Both parties agree that there is but one statute which governs this situation. It directs: “Promotions shall be based upon merit, to be ascertained by written examinations. . . . All examinations for promotions shall be practical in character and such as will fairly test the merit and fitness of the persons seeking promotion.”
It is appellees’ contention that the language of this provision would merely require that the applicant “pass” the examination in order to demonstrate sufficient merit to be worthy of promotion and that other factors such as physical agility, personal courage and leadership qualities could then be considered among
We believe that appellant must prevail. To adopt the interpretation of this language urged by appellees would torture the plain meaning of the statutory provision. Contrary to appellees’ argument that merit “does not, by any stretch of the imagination mean first in a written examination,” according to the statute, the only way to ascertain merit is by a written test. And since the act states that merit is to be the sole criterion for promotion, there is no reasonable manner in which the statute can be read to authorize the use of criteria other than those in the test.
Further support for the appellant‘s position is found in a provision of the Second Class Cities Code where the Legislature explicitly established that factors other than the score on a written examination shall be used. “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.” (Emphasis supplied.) Presumably if the Legislature intended merit to include nonwritten examination factors in second class counties it could have said so with this or similar language. Certainly words more capable of expressing this idea could have been found than that contained in the instant statute. The same conclusion may be drawn from the original appointment provision for second class counties. This
Appellees argue that the interpretation suggested by the appellant is an unconstitutional restriction of the discretion of the appointing authority. But to support this proposition they cite no Pennsylvania case law or constitutional provision which indicates that this is so. The only authority appellees are able to cite is a New York decision, Balcom v. Mosher, 163 N.Y. 32, 57 N.E. 88 (1900), which dealt with a special New York constitutional provision unlike any we have in Pennsylvania. Nor are we aware of any Pennsylvania constitutional provision, statutory or case authority suggesting such a rule.*
Appellees’ final argument that appellant has failed to join as indispensible parties those individuals who were improperly appointed from lower positions on the civil service list is also not valid. It is perhaps true that these other candidates might be affected in a cer-
The order below is vacated and the issue is remanded for proceedings consistent with this opinion.
Mr. Justice MUSMANNO did not participate in the decision of this case.
CONCURRING OPINION BY MR. CHIEF JUSTICE BELL:
I agree with the majority Opinion but I write this concurring Opinion to call to the attention of the Legislature the wisdom of changing this unrealistic and stupid provision of the Act, namely, that promotions are to be based upon merit to be ascertained solely by a written examination.
DISSENTING OPINION BY MR. JUSTICE COHEN:
In his complaint the plaintiff alleges that, “. . . promotions must be made by the Board of Commissioners in order of rank upon the written examination given for the position and that he has, therefore, been illegally bypassed by the defendants for promotion and unlawfully and wrongfully deprived from his right to fill the position of Sergeant and perform the duties thereof and receive the pay and emoluments appertaining thereto.”
The purpose of the written examination is to furnish a pool of men who have passed the examination, which pool will then comprise an eligible list for the Commissioners’ consideration for promotion. The majority opinion does not cite any statute, nor have I been able to ascertain any provision in law, which requires the Commissioners to do what the majority now compels them to do.
I dissent.
Mr. Justice EAGEN joins in this dissenting opinion.