Trosky v. Civil Service Com'n, City of Pittsburgh
| Decision Date | 18 January 1995 |
| Citation | 652 A.2d 813,539 Pa. 356 |
| Parties | George T. TROSKY, Victor M. Cirocco, Douglas A. McMeekin, Barbara L. Mihalow, and Paul A. Cygrymus, v. CIVIL SERVICE COMMISSION, CITY OF PITTSBURGH. Appeal of CITY OF PITTSBURGH and Civil Service Commission of the City of Pittsburgh. James GREGORCHIK, v. CIVIL SERVICE COMMISSION, CITY OF PITTSBURGH. Appeal of CITY OF PITTSBURGH and Civil Service Commission of the City of Pittsburgh. |
| Court | Pennsylvania Supreme Court |
Jacqueline R. Morrow, City Sol., Lorina W. Wise, Asst. City Sol., for appellants.
A. Bryan Campbell, Pittsburgh, for appellees.
Before NIX, C.J., and FLAHERTY, ZAPPALA, PAPADAKOS, CAPPY, CASTILLE and MONTEMURO, JJ.
The issue before the Court in these appeals is the appropriateness of the relief ordered by the Court of Common Pleas of Allegheny County and affirmed by the Commonwealth Court 1. These cases originated as statutory appeals challenging the procedure followed by the City of Pittsburgh in promoting police officers to fill vacancies in the rank of sergeant in December of 1990. The parties agreed to consolidate the cases in the common pleas court, and the matters were submitted for decision on stipulated facts.
According to the parties' stipulation, the context of these disputes involves nine sergeant positions filled by promotion from a list, ranking candidates according to test scores, compiled by the Civil Service Commission and submitted to the Public Safety Director. For each position, the Public Safety Director could choose from among the first four names on the list. 2 The names on the list certified by the Commission were, in relevant part, as follows (candidates selected are underlined):
Steven R. Gardner
Paul Marraway
Joseph A. Dissen
George T. Trosky
Michael J. Kondas
Victor M. Cirocco
Ronald J. Marak
Kurt J. Fischer
William E. Bochter
Mary K. Degler
Douglas A. McMeekin
Robert H. Brown
Barbara L. Mihalow
Paul A. Cygrymvs [sic]
Prior to the selection process, Paul Marraway withdrew his name from consideration.
On December 10, 1990, the Chief of Police sent a memorandum to each of the officers congratulating them on their promotion, and they were sworn in by the Mayor. On December 13, however, the Civil Service Commission advised the Public Safety Director that it could not approve Gregorchik's promotion and had "voided the personnel transaction" submitted for him. The Commission indicated that Gregorchik's promotion "would be in violation of the Civil Service statuatory [sic] provisions regarding promotions, and the Commonwealth Court decision in the case of the Civil Service Commission City of Pittsburgh v. Joseph R. Paieski". 3 Gregorchik was advised of the Commission's action the following day. On December 17, Gregorchik sent a letter to the Commission requesting a hearing "to determine the legality of [his] demotion." The Commission responded that because the promotion had never been approved, there was in fact no demotion, and thus no basis for a hearing.
Shortly thereafter, the President of the Fraternal Order of Police sent a letter to the Commission asserting that the names of Officers Trosky, Cirocco, McMeekin, Mihalow, and Cygrymus had been improperly removed from the list in violation of the holding in Paieski. He requested a hearing to determine if their rights had been violated, and claimed that "since the list has expired, the only proper remedy is to promote the officers whose rights have been violated with back pay and benefits." By letter of January 4, 1991, the Commission denied the request for a hearing, stating that "the appointments were properly made" and the five officers "were not removed from the list."
Viewing only the list, on which the choices were marked without indication of the order of selection, the Commission's conclusion is tenable with respect to all but the ninth position. As reflected in the Commission's decision regarding Officer Gregorchik, it would not have been possible for his name to have been among the top four on the list at the time of the ninth selection unless at least two names were removed from the list for reasons other than that they had already been promoted.
It appears from the stipulation of the parties that notwithstanding the decision in Paieski, in making the promotions in December of 1990 the Public Safety Director removed the names of Officers Trosky and Cirocco from the list after each had been passed over three times in favor of someone lower on the list. The stipulation indicates that the promotions were made in the following order (candidate selected is underlined):
1. Gardner 2. Gardner 3. Dissen
Dissen Dissen Trosky
Trosky Trosky Cirocco
Kondas Cirocco Marak
4. Trosky 5. Trosky 6. Cirocco
Cirocco Cirocco Bochter
Marak Fischer Degler
Fischer Bochter McMeekin
7. Degler 8. Degler 9. McMeekin
McMeekin McMeekin Mihalow
Brown Mihalow Cygrymus
Mihalow Cygrymus Gregorchik
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Had the names of Officers Trosky and Cirocco not been removed from the list, and had the Public Safety Director nevertheless selected the candidates that he did in fact select (Bochter, Degler, and Brown), the top four candidates for the ninth selection would have been Trosky, Cirocco, McMeekin, and Mihalow.
Throughout these proceedings, the City has argued with respect to Trosky and Cirocco that the remedy for their removal from the promotion list would be reinstatement to the list. It notes that this was the remedy ordered in Paieski. The City also emphasizes that pursuant to statute the Public Safety Director possesses discretionary authority in determining promotions, and there is no evidence from which it can be concluded that either Trosky or Cirocco would have been selected for promotion. According to the City, then, the relief ordered by the court infringes on the discretion granted by statute to the Public Safety Director and puts the officers in a better position than they would have been in had their names not been removed from the list.
The response on behalf of Trosky and Cirocco is that after these promotions were made the eligibility list expired and a new test was given. Therefore, they argue, reinstatement to the list is no relief at all, and the only remedy is that they be ordered promoted. They note that reinstatement to the list was the only relief requested in Paieski, and thus that decision cannot be read as holding that such is the only relief available. In this Court, they cite to employment cases involving Title VII and the Pennsylvania Human Rights Act in support of their argument that "courts have considerable latitude in fashioning appropriate remedies." Brief of Appellees at 13. They also cite to Section 754 of the Local Agency Law, 2 Pa.C.S. § 754, which governs appeals from decisions of local agencies, as giving the court power to "enter any order authorized by 42 Pa.C.S. § 706 ()," meaning that the court "may affirm, modify, vacate, set aside or reverse ... and may remand the matter and direct the entry of such appropriate order, or require such further proceedings to be had as may be just under the circumstances."
The common pleas court offered no specific reasoning in support of its choice of remedy, stating only that "we do not think reinstatement with back pay and benefits is exorbitant, particularly now that appellants have lost the benefit of being on the promotion list for almost two years." Commonwealth Court simply concluded that the common pleas court had not abused its discretion, observing that the City had offered no explanation as to why it refused to follow Paieski.
Because neither the General Civil Service Act nor the Police Civil Service Act specify what corrective measures are to be undertaken if the procedures required therein are not followed, it is left to the courts to fashion such a remedy "as may be just under the circumstances."
In addressing the concept of remedies generally, we may note that in the law of contracts remedies for breach are designed to protect either a party's expectation interest "by attempting to put him in as good a position as he would have been had the contract been performed, that is, had there been no breach"; his reliance interest "by attempting to put him back in the position in which he would have been had the contract not been made"; or his restitution interest "[by requiring] the other party to disgorge the benefit he has received by returning it to the party who conferred it." Restatement (Second) of Contracts, Section 344, Comment a. In the law of torts, remedies "attempt[ ] primarily to put an injured person in a position as nearly as possible equivalent to his position prior to the tort." Restatement (Second) of Torts, Section 901, Comment a.
The appellees here properly maintain that the "objective is to find a meaningful remedy to make the plaintiff whole, insofar as possible, thereby securing complete justice to the injured parties." Brief of Appellees at 13. We find, however, that the relief ordered in this case was substantially greater than was necessary to achieve this objective.
As the City argues, given the discretion vested in the Public Safety Director it cannot be said with certainty that either Trosky or Cirocco would have been promoted but for the violation of the Police Civil Service Act. Although one of them might have been promoted, it is also possible that the Public Safety Director could have passed them over again and again, even through the last position to be filled. Indeed, the removal of Trosky and Cirocco had an adverse effect not only on them, but on McMeekin and Mihalow as well. As described previously, but for the improper removal McMeekin and Mihalow would have been...
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