         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Paul Grevy, Paul D. Morris,             :
Micah Jones, Ronald Wilson,             :
David Kearney, Andrew F.                :
Mulson III, Thomas Minor,               :
John Spencer, Marvin Melvin             :
                                        :
                   v.                   : No. 531 C.D. 2017
                                        : Argued: June 7, 2018
City of Philadelphia, Derrick J. V.     :
Sawyer, Albert D’Attilio, Diane         :
Schweizer, Mayor Michael A. Nutter      :
                                        :
Appeal of: Paul Grevy, Andrew F.        :
Mulson, III and Paul D. Morris          :


BEFORE:     HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                          FILED: July 9, 2018



            Paul Grevy, Andrew F. Mulson III, and Paul D. Morris (Appellants)
appeal from the April 4, 2017 order of the Court of Common Pleas of Philadelphia
County (trial court) granting summary judgment in favor of Derrick J. V. Sawyer,
Albert D’Attilio, Diane Schweizer, former Mayor Michael A. Nutter, and the City
of Philadelphia (collectively, the City). Appellants allege that the City violated
ministerial provisions of the parties’ collective bargaining agreement (CBA), civil
service regulations, and the Home Rule Charter when it allowed candidates with
fewer than two years’ experience to sit for a promotional examination. We affirm
the trial court’s order.


                                    Facts and procedural history
                   In February 2015, the City’s fire department announced a promotional
examination for the position of fire captain, with an opening date of February 16,
2015, and a closing date of March 27, 2015. Reproduced Record (R.R.) at 97a-102a.
At the time of the examination, Appellants were fire lieutenants with two years’
experience.
                   Philadelphia Civil Service Regulation 7.08 provides that to be eligible
to take the promotional examination, candidates must have two years’ experience in
grade within 30 days after the last date for filing an application, “unless the [City’s
Human Resources] Director determines that a later date is more appropriate in order
to anticipate eligibility.”1 By setting an anticipated eligibility date of October 31,

       1
           In its entirety, Philadelphia Civil Service Regulation 7.08 (emphasis added) states:

                 7.08 DATE AS OF WHICH ELIGIBILITY IS DETERMINED. In
                 determining whether a candidate possesses the announced
                 requirements of education or number of years of experience or age
                 or licensure or permanent Civil Service status or service in a
                 department, the date as of which eligibility is determined shall be
                 the thirtieth (30) day after the last date for filing applications for that
                 examination unless the Director determines that a later date is more
                 appropriate in order to anticipate eligibility and specifies such later
                 date in the announcement of the examination. For a continuous
                 examination the eligibility date shall be the date on which the
                 application is filed.

                 When the later date is later than the date on which the eligible list is
                 established, a competitor passing the examination shall have his
                 name placed on the eligible list but shall not be certified until and


                                                     2
2015, the Director’s announcement allowed fire lieutenants with fewer than two
years’ experience in grade to sit for the captain’s examination.
                 In August 2015, the department published a list of candidates eligible
for promotion to the position of fire captain, ranking all lieutenants who sat for the
exam in order of test scores and various other factors. The anticipated eligibility
resulted in 90 promotional-eligible candidates for approximately 25 open positions,
including several lieutenants who otherwise would not have qualified. Appellants
were ranked below candidates who had anticipated eligibility dates of October 31,
2015, and were placed so far down the list as to preclude their promotion to fire
captain during the life of the list.2
                 On December 22, 2015, Appellants filed a praecipe for writ of
summons in the trial court. On March 21, 2016, the City filed a rule on Appellants
to file their complaint or suffer a judgment of non pros. On August 2, 2016,
Appellants filed their initial mandamus complaint, and they filed a second amended
complaint on October 11, 2016. Appellants asked the trial court to strike the
candidates who met the anticipated eligibility date, but not the two-year requirement
at the actual test date, from the promotional list.
                 The City filed a motion for summary judgment, which the trial court
granted on April 4, 2017. In its August 23, 2017 opinion, the trial court determined
that Appellants failed to establish a clear legal right for a promotional examination


               unless he has met all eligibility requirements on or before such later
               date.

Trial Court 4/4/17 Opinion at 5 n.2.

       2
          A promotional list remains in force for a least one year from its inception but for no more
than two years. Philadelphia Civil Service Regulation 10.071, R.R. at 61a. The promotional list
at issue expired in August 2017.
                                                 3
that did not anticipate eligibility, and, therefore, they did not have a right to
peremptory mandamus relief. Specifically, the trial court concluded that the plain
language of Civil Service Regulation 7.08 afforded the Director discretion to decide
the eligibility date for the promotional exam and rejected Appellants’ argument that
the Director’s decision violated Section 3 of the parties’ CBA. Appellants now
appeal to this Court.3


                                            Issues
              Appellants raise two issues on appeal: (1) whether the City violated the
Home Rule Charter, the ministerial provisions of the parties’ CBA, and applicable
civil service regulations when it set an anticipated eligibility date for a promotional
examination; and (2) whether the trial court erred in granting summary judgment
where the court had the power to fashion a remedy in peremptory mandamus.


                                          Discussion
              Appellants first assert that the City violated ministerial provisions of
the parties’ CBA, civil service regulations, and the Home Rule Charter when the
Director set an “anticipated eligibility date” and thereby allowed candidates with
fewer than two years’ experience to sit for a promotional exam. Appellants’


       3
          Our scope of review from the granting of a motion for summary judgment is plenary; the
standard of review is whether the trial court committed an error of law or abused its discretion.
Borough of Riegelsville v. Miller, 639 A.2d 1258, 1261 (Pa. Cmwlth. 1994). Summary judgment
is proper only where there is no genuine issue concerning any material fact and the moving party
is entitled to judgment as a matter of law. Bailets v. Pennsylvania Turnpike Commission, 123 A.3d
300, 304 (Pa. 2015). In considering a motion for summary judgment, the record must be viewed
in the light most favorable to the non-moving party, and all doubts as to whether a genuine issue
exists are resolved against the moving party. Id.

                                               4
argument may be summarized as follows. The Home Rule Charter requires the
Director to prepare and administer the civil service program under the civil service
regulations.4 The civil service regulations, in turn, authorize the Director to establish
policies and procedures for the preparation and conducting of examinations,
maintain a list of candidates, and establish an eligible list for various classes of
positions as deemed necessary or desirable to meet the needs of the service.5 The
Director’s determination as to what is “necessary or desirable to meet the needs of
the service” is governed by the parties’ CBA. Section 3 of the CBA requires the
Testing and Examination Committee to meet regularly, and at least once before and
after each examination.6 In this case, the meetings of the Testing and Examination
Committee were not held as required by Section 3 of the CBA, and the use of the
anticipated eligibility date for the exam was not discussed or agreed to by the parties.
Consequently, Appellants argue, the Director had no authority or discretion to make

       4
        “All appointments and promotions to positions in the civil service shall be made in
accordance with the civil service regulations.” Philadelphia Home Rule Charter 7-300, R.R. at
68a.

       5
           Philadelphia Civil Service Regulation 10.022, R.R. at 61a.

       6
           Section 3(b) of the parties’ CBA states:

                 b. The parties shall form a joint Testing and Examination Committee
                 composed of three representatives of Local 22 named by the
                 President of Local 22 and three representatives of the City named
                 by the Personnel Director, including one high ranking member of
                 the Personnel Department.           The Testing and Examination
                 Committee shall meet regularly and at least once before and after
                 each examination and shall make non-binding recommendations to
                 the City regarding the improvement of the testing and examination
                 procedures. Local 22 representatives shall recuse themselves from
                 any meeting for which the particular representative is a candidate.

R.R. at 22a (emphasis added).
                                                  5
decisions regarding the competitive promotional examination, such as anticipating
eligibility.
               In response, the City contends that Appellants’ mandamus claim
necessarily fails because Appellants have not established a clear legal right to a
promotional examination that does not anticipate eligibility. The City notes that the
plain language of Philadelphia Civil Service Regulation 7.08, requiring two years’
experience in grade “unless the Director determines that a later date is more
appropriate in order to anticipate eligibility,” unequivocally gives the Director the
discretion to determine a later eligibility deadline for candidates who might want to
take a promotional examination. Indeed, the phrase “unless the Director determines”
expressly contradicts Appellants’ argument that the Director’s decision is ministerial
rather than discretionary. The City also maintains that Section 3 of the parties’ CBA
does not give Appellants a clear legal right to a test that does not anticipate eligibility
because it provides that the Testing and Examination Committee may only make
non-binding recommendations to the City.
               Appellants next argue that the trial court erred in entering summary
judgment, because, under controlling law, the court had a power to fashion a remedy
in peremptory mandamus. We disagree.
               Mandamus is the proper remedy only where the plaintiff demonstrates:
(1) a clear right to performance of a ministerial act or mandatory duty; (2) a
corresponding duty on the defendant to perform that ministerial act or mandatory
duty; and (3) the lack of any other appropriate or adequate remedy. Equitable Gas
Co. v. City of Pittsburgh, 488 A.2d 270, 272 (Pa. 1985). “[M]andamus will not issue
unless the right of the petitioner is clear and specific: it can never be invoked in a
doubtful case. . . . To succeed in an action of mandamus, the plaintiff must show an


                                            6
immediate, specific, well defined and complete legal right to the thing demanded.”
Id. at 272-73 (citations omitted).
               An act is considered “ministerial” when a public official is “required to
perform upon a given state of facts and in a prescribed manner in obedience to the
mandate of legal authority.”           Fagan v. Smith, 41 A.3d 816, 818 (Pa. 2012).
Mandamus cannot issue to compel performance of a discretionary act. Id.
               As discussed above, Philadelphia Civil Service Regulation 7.08 affords
the Director the discretion to determine a later eligibility deadline for candidates
taking the promotional examination, and Appellants cite no language in the CBA
that establishes a right to specific relief based on the failure of the Testing and
Examination Committee to meet. Accordingly, Appellants failed to demonstrate that
they were entitled to the remedy of mandamus,7 and the trial court properly granted
summary judgment to the City.


                                           Conclusion
               Ultimately, Appellants cite no language in the Home Rule Charter, civil
service regulations, or CBA that establishes a right to relief based either on the use
of an anticipated eligibility date for the promotional examination or the failure to
hold a timely meeting of the Testing and Examination Committee.8


       7
          Appellants’ reliance on Trosky v. Civil Service Commission, 652 A.2d 813 (Pa. 1995),
and McAndrew v. Municipal Civil Service Commission of Scranton, 952 A.2d 1219 (Pa. Cmwlth.
2008), is misplaced. In those cases, the issues were not whether the parties were entitled to relief,
but whether the relief granted was appropriate.

       8
         Having determined that Appellants have not established a right to relief, we need not
address the City’s argument that, under Section 8 of the CBA (grievances involving certain
contract violations may be initiated only by the union), Appellants do not have standing to seek
mandamus.
                                                 7
Accordingly, we affirm.




                          MICHAEL H. WOJCIK, Judge




                           8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Paul Grevy, Paul D. Morris,             :
Micah Jones, Ronald Wilson,             :
David Kearney, Andrew F.                :
Mulson III, Thomas Minor,               :
John Spencer, Marvin Melvin             :
                                        :
                  v.                    : No. 531 C.D. 2017
                                        :
City of Philadelphia, Derrick J. V.     :
Sawyer, Albert D’Attilio, Diane         :
Schweizer, Mayor Michael A. Nutter      :
                                        :
Appeal of: Paul Grevy, Andrew F.        :
Mulson, III and Paul D. Morris          :

                                   ORDER


            AND NOW, this 9th day of July, 2018, the April 4, 2017 order of the
Court of Common Pleas of Philadelphia County is AFFIRMED.




                                      __________________________________
                                      MICHAEL H. WOJCIK, Judge
