Capital City Lodge No. 12, Fraternal Order of Police v. City of Harrisburg

• Decision Date: 19 March 1991
• Docket Number: No. 901,901
• Parties: , 55 Fair Empl.Prac.Cas. (BNA) 1229, 62 Empl. Prac. Dec. P 42,466 CAPITAL CITY LODGE NO. 12, FRATERNAL ORDER OF POLICE, Appellant, v. The CITY OF HARRISBURG and The Civil Service Board, Appellees. C.D. 1990.
• Court: Pennsylvania Commonwealth Court

Page 584

588 A.2d 584

138 Pa.Cmwlth. 475, 55 Fair Empl.Prac.Cas.

(BNA) 1229,

62 Empl. Prac. Dec. P 42,466

CAPITAL CITY LODGE NO. 12, FRATERNAL ORDER OF POLICE, Appellant, v. The CITY OF HARRISBURG and The Civil Service Board, Appellees.

No. 901 C.D. 1990.

Commonwealth Court of Pennsylvania.

Argued Oct. 31, 1990.

Decided March 19, 1991.

Anthony C. Busillo, II, Law Firm of Gary M. Lightman, Harrisburg, for appellant.

Bradley C. Bechtel, City Solicitor, Harrisburg, for appellees.

Before CRAIG, President Judge, and DOYLE, PALLADINO, McGINLEY, PELLEGRINI, KELLEY and BYER, JJ.

PELLEGRINI, Judge.

Capital City Lodge No. 12, Fraternal Order of Police (FOP) appeals from an order of the Court of Common Pleas, Dauphin County, which denied the FOP's Motion for Peremptory Judgment in Mandamus and sustained the City of Harrisburg's (City) and the Civil Service Board's (Board) preliminary objections.

On November 16, 1981, the Pennsylvania Human Relations Commission (PHRC) filed a complaint against the City, alleging that the City, in its employment practices within the police department, was engaged in patterns or practices which discriminated on the basis of race and sex with respect to tenure, terms, condition and privilege of employment in violation of Sections 5(a), (d) and (e) of the Pennsylvania Human Relations Act (Act), Act of October 27, 1955, P.L. 744, as amended, 43 P.S. § 955(a), (d) and (e). To avoid litigation, the City entered into a Conciliation Agreement (Agreement) with the PHRC on October 29, 1984. ¹ Under the terms of settlement in the Agreement, the City agreed that its goal was to have a police force that was racially and ethnically representative of the population it served, as well as reflective of the sexual composition of the community it served. ² No specific method by which the City was to achieve this goal was set forth in the Agreement. Such compliance was left up to the City to achieve.

In an effort to comply with the goals of the Agreement, the City adopted a "dual list" procedure to fill open positions. The way this procedure operated was to rank and place the names of all minority and female officers who qualified on a minority list, and to rank and place the names of all majority officers who qualified on a separate majority list. Whenever a vacancy occurred for a particular rank, the Chief of Police would present three names to the Mayor, alternating from each of the eligibility lists. If a vacancy was filled by an officer whose name was on the majority list, the next vacancy would be filled by an officer whose name was on the minority list.

As a result of the Board's certification of two eligibility lists for promotions to the positions of Corporal and Lieutenant, and the posting of these two lists on August 2, 1989, the FOP filed with the trial court a Complaint In Mandamus And For Declaratory Relief. The Complaint alleged that the use of a single list was mandated pursuant to Section 4406 of The Third Class City Code, ³ and requested the court to declare the promotional lists certified by the Board illegal and invalid. The City filed Preliminary Objections in the Nature of a Demurrer, alleging that the FOP had not stated a cause of action, because the FOP had not shown a clear right to relief, had other adequate remedies at law, and had not joined all other interested parties. The FOP then filed a Motion for Peremptory Judgement in Mandamus, which incorporated the Complaint In Mandamus And For Declaratory Relief. The trial court denied the FOP's Motion for Peremptory Judgment in Mandamus and sustained the City's Preliminary Objections, finding that a mandamus was to be granted only when there was no other remedy at law. ⁴ Because the current collective bargaining agreement contained a provision regarding promotions subject to grievances, and the FOP could have filed a complaint with the Pennsylvania Labor Relations Board (PLRB), there were other remedies available to the FOP. The FOP then filed the present appeal based on the trial court's order. ⁵

The issues now before us are whether the trial court erred in sustaining the City's Preliminary Objections based on its conclusion that there were other remedies available to the FOP for addressing the City's usage of a dual list system, and if so, whether the use of a dual list system violates Section 4406 of The Third Class City Code. ⁶

When considering preliminary objections in the nature of a demurrer, we accept as true all well-pleaded material facts in the complaint as well as all reasonable inferences that may be drawn from those facts. Stein v. Richardson, 302 Pa.Superior Ct. 124, 448 A.2d 558 (1982). Preliminary objections should be sustained and a complaint dismissed only in cases that are clear and free from doubt that the law will not permit recovery by the plaintiff. Donnelly v. DeBourke, 280 Pa.Superior Ct. 486, 421 A.2d 826 (1980).

The FOP contends that the trial court erred in sustaining the City's Preliminary Objections because the FOP was clearly entitled to relief since there were no other remedies available to address the issue of whether the dual list system was an appropriate means of determining which officers would be promoted. Specifically, the FOP argues that the grievance procedure under the collective bargaining agreement was not available as a remedy, because an arbitrator would have been limited to interpreting the terms of the agreement and would have had no authority to determine whether the rules and regulations regarding promotions were lawful. We disagree.

Article XXI of the collective bargaining agreement provides the following regarding promotions:

All promotions in the Police Bureau will be made from within the ranks of the paid members of the Police Bureau and shall be made by competitive examinations administered by the appropriate Civil Service Board, and the regulations of the Civil Service Board shall be established and copies made available to all members of the Police Bureau indicating the basis upon which eligibility is to be determined.

Article XX, Section 1 of the collective bargaining agreement provides that any dispute arising out of the interpretation of the contract shall be subject to arbitration:

Any disputes arising under this Agreement relating to interpretations or applications of the terms and conditions of this Agreement shall be subject to arbitration in accordance with the arbitration provisions of this Agreement, and any award pursuant to any such arbitration shall be final and binding upon the City and the FOP, and shall not be subject to appeal or review. (Emphasis added.)

Because Article XXI refers to all promotions made by the Police Bureau, any concerns regarding the newly implemented dual list promotional system, including whether it is legally permissible, would be an appropriate dispute for grievance or arbitration and interpretation pursuant to Articles XXI and XX of the collective bargaining agreement. ⁷ The applicability of arbitration is further warranted by Section 903 of the Public Employe Relations Act, Act of July 23, 1970, P.L. 563, 43 P.S. § 1101.903, which provides that arbitration of disputes or grievances arising out of the interpretation of the provisions of a collective bargaining agreement is mandatory. Therefore, the FOP's concern regarding the dual list system could be interpreted under the collective bargaining agreement, because filing a grievance or arbitrating the matter would be mandatory.

The trial court also found that the FOP had an additional remedy for determining the validity of the dual list system by filing a complaint with the PLRB. However, the FOP argues that such a remedy was not available. The FOP contends that the PLRB has no authority to rule on the legality of civil service procedures, to interpret the state civil service laws or to rule on issues involving the interpretation of the Human Relations Act. Again, we disagree.

The Pennsylvania Labor Relations Act provides two avenues for the determination of the FOP's dispute or to aid in resolution of that dispute. First, pursuant to Section 8(a) of the Pennsylvania Labor Relations Act (Act), Act of June 1, 1937, P.L. 1168, as amended, 43 P.S. §...