City Of Philadelphia not required to immediately fill Fire Department vacancies

By Nicholas Malfitano | Aug 31, 2015

Supreme Court Of Pennsylvania Justice Max Baer  

PHILADELPHIA – On July 20, the Supreme Court of Pennsylvania ruled vacancies in the City of Philadelphia’s Fire Department do not need to be filled immediately.

In a unanimous opinion, the Court decided to uphold the judgment of the Commonwealth Court of Pennsylvania, which chose in September 2013 to reverse a decision made in this case in the Philadelphia County Court of Common Pleas.

Similar to the Commonwealth Court, the Supreme Court held “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.” Justice Max Baer authored the Court’s opinion.

On May 25, 2011, following civil service testing and ranking, the City created a promotion list for the positions of Fire Captain and Fire Lieutenant. The City used its list to promote 113 employees into those positions, with that list becoming null and void two years after its creation, on May 25, 2013.

This two year-limit is in keeping with the City’s Home Rule Charter and Civil Service Regulations. Near the conclusion of that two year-limit, an additional 17 positions were vacated. 

The City chose to wait until the 2011 promotional list expired, so it could fill the vacancies with the top-ranking candidates from the next promotion list.

The Union, collectively the Philadelphia Firefighters’ Union Local 22 and the AFL-CIO’s International Association of Firefighters, filed an emergency motion in the Philadelphia County Court of Common Pleas, claiming the City breached their collective bargaining agreement (CBA) and seeking both injunctive and mandamus relief.

The trial court granted peremptory mandamus in favor of the Union, and ordered the City to fill the positions from the 2011 promotion list.

On appeal to the Commonwealth Court, the City argued that the trial court erred, because “neither the Home Rule Charter nor its Civil Service Regulations require vacancies to be filled immediately by promotion, but rather, merely mandate that when vacancies are being filled, they should be filled by promotion as opposed to by outside hiring.”

Further, the City argued under Civil Service Regulations, “the Fire Commissioner has the discretion to decide whether or when to promote candidates and, therefore, the promotion process does not involve a ministerial act or duty.”

It was an argument that found favor with the Commonwealth Court, which opted to reverse the Philadelphia County Court of Common Pleas ruling. The Union then appealed to the Supreme Court of Pennsylvania.

Baer explained the Supreme Court was left to decide “whether the Commonwealth Court’s decision is inconsistent with similar decisions of that court involving the Philadelphia Home Rule Charter and Civil Service Regulations; and whether the Commonwealth Court disregarded the continued viability of the Civil Service public employment system.”

In speaking for the unanimous vote of his fellow justice, Baer agreed with the Commonwealth Court.

“While the Commissioner is required to fill vacancies in the manner prescribed by the Home Rule Charter and the Civil Service Regulations, neither the Charter nor the Regulations speak to the timing of promotions or otherwise create a clear legal right to a promotion,” Baer said.

Through Baer, the Court added the Union failed to demonstrate a corresponding duty in the City since neither the Charter nor the Regulations require the City to fill vacancies immediately. 

“There is no imperative that the City exhaust a promotional list before establishing a new list, or that promotions must occur from a particular list before it expires. Rather, the City is required to expire a list after two years to provide employees ‘reasonable opportunity for employment’ and to replenish lists with ‘the names of the most competent candidates available for employment.”

Baer and his colleagues concluded by affirming the ruling of the Commonwealth Court.

“Because there is no right to be promoted and no requirement that the City make promotions as soon as positions become vacant, the Commonwealth Court properly concluded that the trial court erred in granting mandamus relief to the Union. The order of the Commonwealth Court is affirmed,” Baer said.

Chief Justice Thomas G. Saylor and Justices J. Michael Eakin, Debra McCloskey Todd and Correale F. Stevens joined Baer’s opinion.

The appellants are represented by John R. Bielski, in Philadelphia. 

The appellees are represented by Deputy City Solicitor Elise Bruhl, also in Philadelphia.

The Supreme Court of Pennsylvania case 16 EAP 2014

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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