                                   [J-3-2015]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                               EASTERN DISTRICT

                   SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ.


PHILADELPHIA FIREFIGHTERS' UNION,             :   No. 16 EAP 2014
LOCAL 22, INTERNATIONAL                       :
ASSOCIATION OF FIREFIGHTERS, AFL-             :   Appeal from the order of the
CIO BY ITS GUARDIAN AD LITEM                  :   Commonwealth Court entered on
WILLIAM GAULT, PRESIDENT, TIM                 :   9/18/2013 at No. 869 C.D. 2013 reversing
MCSHEA, VICE PRESIDENT, KELVIN                :   the order entered on 5/14/2013 in the
FONG, VICE PRESIDENT, AND FIRE                :   Court of Common Pleas, Civil Division,
LIEUTENANT ANDREW THOMAS,                     :   Philadelphia County at No. 1039 May
                                              :   Term 2013
                      Appellants              :
                                              :   78 A.3d 16 (Pa.Cmwlth. 2013)
                                              :
              v.                              :   ARGUED: March 10, 2015
                                              :
                                              :
CITY OF PHILADELPHIA, MAYOR                   :
MICHAEL A. NUTTER, RICHARD                    :
NEGRIN, LLOYD AYERS,                          :
                                              :
                      Appellees               :



                                         OPINION


MR. JUSTICE BAER                                                DECIDED: July 20, 2015
       The International Association of Firefighters, Local 22, AFL-CIO, and its named

officers (collectively, the Union) is the collective bargaining unit representing the City of

Philadelphia’s firefighters and paramedics.           It appeals from the order of the

Commonwealth Court, which reversed the trial court’s grant of peremptory judgment in

mandamus for the Union and against the City of Philadelphia, Mayor Michael A. Nutter,
Richard Negrin, and Lloyd Ayers (collectively, the City), and required the City to fill

vacancies immediately in the positions of Fire Captain and Fire Lieutenant.          The

Commonwealth Court held that neither the Home Rule Charter, 351 Pa.Code §§ 1.100

et seq, nor the Civil Service Regulations require vacancies to be filled immediately. We

agree, and hold that 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.

      Union members are subject to Philadelphia’s Civil Service Regulations, which

comprise the procedures for hiring and promotion in the City in accord with the Home

Rule Charter.   The Home Rule Charter directs that Civil Service Regulations “shall

provide for” promotions which “give appropriate consideration to the applicant’s

qualifications, record of performance, seniority and conduct.” 351 Pa.Code § 7.7-400.

Moreover, “[v]acancies shall be filled by promotion whenever possible, and promotion

shall be on a competitive basis except where the Personnel Director with the approval

of the Civil Service Commission finds that competition is impracticable.” Id., § 7.7-

401(e).

      Moreover, the Home Rule Charter requires “the establishment of eligible lists for

appointment and promotion,” the ranking of eligible candidates in order of their

performance on civil service examinations, and directs that such lists “shall continue in

force for at least one year . . . until exhausted or replaced by more recently prepared

lists but in no case longer than two years.” Id., § 7.7-401(f). The Home Rule Charter

further requires the City to certify the two candidates with the highest standing on the

appropriate eligible list to fill a vacancy, and directs that after a candidate has been




                                     [J-3-2015] - 2
rejected twice by an appointing authority in favor of other candidates, that candidate can

no longer be certified.1 Id., § 7.7-401(h).

        The Home Rule Charter calls for the promulgation of Civil Service Regulations “to

establish for the City a system of personnel administration based on merit principles and

scientific methods governing the appointment, promotion, demotion, transfer, layoff,

removal and discipline of its employees, and other incidents of City employment.” 351

Pa.Code § 7.7-300. Moreover, “[a]ll appointments and promotions to positions in the

civil service shall be made in accordance with the civil service regulations.” Id. The

Civil Service Regulations apply to firefighters in Philadelphia. Phila. Civil Serv. Reg.

2.06.

        Pursuant to the Civil Service Regulations, promotions are made from a

“promotional list,” which is defined as “an eligible list of names of persons who have

passed a promotional examination for a particular class of position and whose names

are ranked on the list in the order prescribed in these Regulations.” Phila. Civil Serv.

Reg. 2.38; see also id. 10.013 (providing that a “promotional eligible list” is “[c]omprised

of all qualified candidates who have permanent civil service status and who have

passed an examination and are ranked in order of relative excellence.”).            Eligible

candidates receive their ranking based on test scores and a number of other factors,

including interviews, prior performance, and veteran’s status. Phila. Civil Serv. Reg.

2.38, 2.39, 9.02, 9.022, 9.023, 10.013.

        Once the City approves and publishes a promotional list of candidates, those

candidates “may be certified and appointed at any time . . . until the list expires or is

exhausted or cancelled.” Phila. Civil Serv. Reg. 10.022. Moreover, the Director of

1
      An exception to this rule of rejection exists where a non-veteran candidate was
passed over in favor of a veteran, which does not constitute a rejection. 351 Pa.Code §
7.7-401(h).



                                       [J-3-2015] - 3
Human Resources for the City of Philadelphia (Director) “may publish a List of

Candidates and establish an eligible list at separate times or simultaneously as deemed

necessary or desirable to meet the needs of the service.”                Id.   A promotional list

continues in force until it is exhausted or replaced, “but in no case longer than two

years.” Id., 10.071. When a more recent promotional list has been established, the

Director may cancel a previous promotional list that is more than a year old, and replace

it with the more recent list or consolidate them under certain conditions. Id. An eligible

candidate remaining on a prior list that has expired may take a new examination for

placement on a new promotional list. Phila. Civil Serv. Reg. 10.081.

       Pursuant to Regulation 9.021, “[u]nless vacancies are filled by demotion,

transfer, reinstatement, or by certification from a layoff list, they shall be filled so far as

practicable by the promotion of permanent employees in the Civil Service.” Phila. Civ.

Serv. Reg. 9.021. To fill a vacancy by promotion in the Fire Department, the Fire

Commissioner      (Commissioner)     requests    the     Director   to    certify,   with   certain

qualifications, the top two candidates from the promotional list for that position. Id.,

11.091, 11.03. The Commissioner may choose either of the two candidates. Id. If the

Commissioner wishes to fill more than one vacancy at a time, he may request the

Director to certify a set of candidates for the positions. Id., 11.04.

       A candidate who is rejected for promotion is returned to the promotional list; like

the Home Rule Charter, the regulations provide that two rejections will result in no

further referrals to the Commissioner by the Director. Phila. Civil Serv. Reg. 11.05. The

promotion of a candidate who is selected by the Commissioner is subject to approval by

the Director and is conditional on the candidate passing a medical examination. Id.,

11.035, 11.11, 11.12, 9.1413.           During a six-month probationary period, the




                                        [J-3-2015] - 4
Commissioner has the discretion to demote or discharge the candidate from the position

if the candidate does not perform in a satisfactory manner. Id., 14.01, 14.04.

       With this framework in mind, we turn to the facts of this case. On May 25, 2011,

following civil service testing and ranking, the City established a promotional list for the

positions of Fire Captain and Fire Lieutenant that was set to expire by operation of law

on May 25, 2013 (hereafter, the May 2011 list), two years from the date it was

established.   The City thereafter promoted 35 employees into the position of Fire

Captain and 78 into the position of Fire Lieutenant from the list, leaving 82 individuals

on the list for the position of Fire Captain and 140 on the list for Fire Lieutenant.

       Near the end of the May 2011 list’s two-year term, an additional 17 positions

became vacant. The City, however, declined to fill these vacancies through utilization of

the May 2011 list. Instead, on May 3, 2013, the Director of Public Safety announced at

a City Council hearing the City’s decision to await the expiration of the May 2011 list by

operation of law in three weeks’ time, and to fill the vacancies with the top-ranking

candidates from the next promotional list. This new list was to be established following

civil service testing and ranking after May 25, 2013.2 The Director of Public Safety

explained that the City wanted to allow the May 2011 list to expire because the

candidates who remained on the list were ranked near the bottom, and the City would

prefer to choose the highest ranked candidates from a new list.3

2
       By May 13, 2013, a new civil service examination had been given, and the City
was in the process of creating a new promotional list for the positions of Fire Captain
and Fire Lieutenant.

3
        As further background relevant to this current legal dispute, the City and Union
are parties to a collective bargaining agreement pursuant to Act 111, 43 P.S. § 217.1-
217.10. Prior to the instant litigation, the Union submitted a set of proposals as part of
its interest arbitration process with the City, specifically requesting that the City be
required to fill all vacancies within 60 days, or, where a vacancy arose within 60 days of
(Lcontinued)

                                        [J-3-2015] - 5
      Dissatisfied with the City’s intended course of conduct in this regard, on May 13,

2013, the Union filed an emergency motion in the Philadelphia Court of Common Pleas

for preliminary injunction or for peremptory judgment in mandamus directing the City to

promote immediately six Union members to Fire Captain and 11 to Fire Lieutenant from

the May 2011 list.4 The City responded that it was not legally required to fill vacancies

before the May 2011 list expired.

      The trial court heard oral argument on the Union’s emergency motion for

preliminary injunction and mandamus on May 14, 2013. Following oral argument, the

court entered an order granting the Union peremptory judgment in mandamus and

directing the City to fill vacancies for the positions of Fire Captain and Fire Lieutenant

prior to May 25, 2013. The trial court relied on Section 7-401(e) of the Home Rule

Charter to hold that vacancies must be filled by promotion at the first possible

opportunity rather than at the City’s discretion. Finding no impediment preventing the

City from doing so, and specifically finding that the vacancies at issue were already

“budgeted,” the trial court found that peremptory judgment in mandamus was

appropriate to compel the performance of the ministerial act of immediately promoting




(continuedL)
the expiration of an active promotional list, before the list expired. The Union’s proposal
was rejected, and interest arbitration resulted in two awards setting forth the City’s
management rights, including the right to determine selection and direction of
personnel.

4
        Mandamus relief is proper only where the petitioner demonstrates a clear legal
right in the petitioner; a corresponding duty in the respondent; and the absence of any
other appropriate or adequate remedy. Equitable Gas Co. v. City of Pittsburgh, 488
A.2d 270, 272 (Pa. 1985).




                                      [J-3-2015] - 6
candidates from the promotional list, and to vindicate the Union’s clear legal right to this

relief.5

           The City appealed to the Commonwealth Court, arguing that the trial court erred

because neither the Home Rule Charter nor the Civil Service Regulations require

vacancies to be filled immediately; rather, they merely mandate that when the positions

are filled, it must be by promotion as opposed to outside hiring. The City further argued

that mandamus relief was inappropriate because the Fire Commissioner has discretion

to decide whether or when to promote candidates and, therefore, the promotion process

does not involve a ministerial act by the City or a clear legal right to relief for the Union.

           The Commonwealth Court agreed with the City, reversed the trial court’s order,

and remanded to the trial court to dismiss the Union’s complaint.                 Philadelphia

Firefighters’ Union v. City of Philadelphia, 78 A.3d 16 (Pa.Cmwlth. 2013). Examining

Sections 7-401(e) of the Home Rule Charter and 9.021 of the Civil Service Regulations,

the Commonwealth Court interpreted them to mean that promotion from the promotional

list is the required method of filling vacancies (unless the vacancy is filled by demotion,

transfer, reinstatement, or from a layoff list, in accord with Regulation 9.021), and found

nothing in these provisions requiring promotion as soon as a position becomes vacant.

           Additionally, the Court found nothing to prevent the City from allowing an old list

to expire so that it could promote individuals from a new list, and nothing that granted

candidates on a particular list a right to be promoted into a vacancy.             Finally, the

Commonwealth Court observed that the Civil Service Regulations gave the

Commissioner discretion in deciding when to promote employees or to fill vacancies.

5
        Upon the trial court’s grant of relief to the Union, the City promoted several Union
members into the positions of Fire Captain and Fire Lieutenant, and informed them that
their promotions were subject to the City’s appeal. The promoted Union members took
the civil service examination for placement on the promotional list, but did not pass.



                                          [J-3-2015] - 7
Phila. Civil Serv. Reg. 10.022 (“[e]ligible candidates may be certified and appointed at

any time after the list has been established until the list expires or is exhausted or

cancelled.”) (emphasis added); 11.04 (providing the procedure to be used where the

appointing authority, here, the Commissioner, decides to fill more than one vacancy at a

time). Because there was no right to a promotion, and the promotion of individuals from

a promotional list is not a ministerial act, the Commonwealth Court held the trial court

erred in granting mandamus relief.

      Upon further appeal by the Union, we granted allowance of appeal to decide two

issues: 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. Philadelphia Firefighters’ Union v. City

of Philadelphia, 91 A.3d 1235 (Pa. 2014).

      Relying first on the Home Rule Charter, 351 Pa.Code § 7.7-401 (“[v]acancies

shall be filled by promotion whenever possible.”), the Union argues that once a vacancy

exists, that vacancy must be filled immediately through the civil service process.

According to the Union, the Civil Service Regulations likewise require vacancies to be

filled immediately by promotion (if they are not filled by other specified means). Phila.

Civil Serv. Reg. 9.021 (“[u]nless vacancies are filled by demotion, transfer,

reinstatement, or by certification from a layoff list, they shall be filled so far as

practicable by the promotion of permanent employees in the Civil Service.”). Because,

according to the Union, it was both possible and practicable for the City to fill the

vacancies by promotion, it argues the City had no discretion to simply allow the

vacancies to remain unfilled until a new promotional list was established.




                                      [J-3-2015] - 8
       The Union also attempts to undermine the Commonwealth Court’s holding on

policy grounds, arguing that the civil service system exists to limit and control

employment premised on favoritism, cronyism, and discrimination by maintaining

objectivity in employment decisions.          Under the Commonwealth Court holding,

according to the Union, the Fire Commissioner could keep vacancies open for any

length of time, years or decades in fact, for the sole purpose of awaiting the appearance

of a desired candidate on an eligibility list.        Addressing the City’s suggestion that

individuals from the top of a new list would be better candidates than those at the

bottom of the expiring list, the Union argues that every candidate who was on the May

2011 list was there because the City deemed them objectively qualified.

       The Union argues that the Commonwealth Court decision in this case is

inconsistent with Walls v. City of Philadelphia, 646 A.2d 592 (Pa.Cmwlth. 1994). In

Walls, the City and a group of civil service applicants agreed to extend a promotional list

to three years. Another group of applicants challenged this decision, arguing that the

promotional list expired by operation of law after two years. The trial court ordered the

City to cease using the list and create a new one, agreeing that the old list had expired

after two years.     On appeal, the Commonwealth Court affirmed, examining the

Philadelphia Home Rule Charter and Civil Service Regulations and finding no exception

to the two-year mandatory expiration.           The Union characterizes Walls as the

Commonwealth Court’s rejection of the City’s “attempt to dodge specific mandates of

the civil service regulations.” Union’s brief at 9.

       The Union argues that the Commonwealth Court decision in this case was also

contrary to City of Philadelphia v. Fraternal Order of Police, Lodge No. 5, 574 A.2d 123

(Pa.Cmwlth. 1990). There, the trial court and the Commonwealth Court concluded that

the City was required to rank civil service candidates based on their test results, rather




                                        [J-3-2015] - 9
than randomly by a computer, holding that the Charter and Civil Service Regulations

clearly required competitive civil service selection based on relative fitness. The Union

asserts that as in FOP Lodge No. 5, the City here is improperly attempting to make up

its own rules and disregard the Charter and Civil Service Regulations.

      The City responds by arguing that there is no clear legal right to a promotion or a

corresponding duty in the City to make immediate promotions; therefore, the

Commonwealth Court properly held that the Union was not entitled to mandamus relief.

See, e.g., Equitable Gas Co. v. City of Pittsburgh, 488 A.2d 270, 272 (Pa. 1985). The

City relies on various provisions of the Home Rule Charter and the Civil Service

Regulations to support this position.

      Specifically, the City argues that the Home Rule Charter does not provide a clear

legal right to a promotion. Examining Section 7-401(e) as the primary Charter provision

on which the Union relies, the City asserts that its direction that “[v]acancies shall be

filled by promotion whenever possible. . . .” does not mean that vacancies are to be

filled immediately by promotion; rather, as the Commonwealth Court found, the City

contends this provision mandates only that when vacancies are filled, they are to be

filled by promotion as opposed to outside hiring. It supports this argument by referring

to the annotation to subsection (e), which provides that “[p]romotion upon merit and

other recognized bases is an important incentive for achievement and continued

municipal service and employment.”          351 Pa.Code § 7.7-401, Annot. (Purposes).

According to the City, this annotation demonstrates that promotion is the favored

method of filling vacancies so that career tracks are created and municipal employees

can strive for advancement without fear of being passed over in favor of outside hiring.

      Examining the context of the rest of Section 7-401, the City argues that the entire

provision is dedicated to the manner of hiring, firing, and promoting, rather than to the




                                        [J-3-2015] - 10
decision of whether or when to hire, fire, or promote. See 351 Pa.Code § 7.7-401(a)

(preparation and creation of position classifications); § 7.7-401(b) (calling for the

creation of a pay scale); § 7.7-401(c) (creation of open examinations); § 7.7-401(d) (the

establishment of certain preferences in entrance examinations); § 7.7-401(f) (the

establishment of promotional lists); § 7.7-401(g) (the rejection of candidates); § 7.7-

401(h) (certification of two candidates for a position); § 7.7-401(i) (identification of

employees); § 7.7-401(j) (the establishment of a six month probationary period); § 7.7-

401(n) (performance ratings for employees); § 7.7-401(p) (calling for suspensions that

are limited to thirty days); § 7.7-401(q) (discharge or demotion).

       Taking a broader view of City-wide fiscal responsibility, the City argues that a

number of reasons regularly exist that preclude immediate expenditure of budgeted

dollars, and the Home Rule Charter gives the Mayor and his Director of Finance

unreviewable authority not to spend appropriated funds. See 351 Pa.Code § 8.8-102

(authorizing the Mayor and the Director of Finance not to spend appropriated funds to

avoid deficits and as a check on performance); id. § 4.4-101(e) (requiring the Mayor to

prevent deficits).

       Addressing the Civil Service Regulations promulgated in accord with the Home

Rule Charter, the City argues that, like the Charter, the regulations contain no

requirement that the City immediately fill vacant positions. Rather, they merely address

the manner of filling vacancies. Specifically examining the requirement in Regulation

9.021 (providing that unless vacancies are filled by demotion, transfer, reinstatement, or

from a layoff list, they “shall be filled so far as practicable” by promotion), the City

argues that it mirrors Section 7-401(e) of the Home Rule Charter by establishing a

preference for promotion rather than hiring from outside.




                                      [J-3-2015] - 11
       Further, according to the City, neither the regulations nor the Charter require that

a particular promotional list be exhausted before a new list is established, or that

promotions must occur before an old list expires.         Rather, the City posits that the

purpose of expiring a promotional list after two years is to provide employees

reasonable opportunity for advancement and to replenish the list periodically with the

most competent candidates for promotion.         See 351 Pa.Code § 7.7-401(f) (Annon)

(“The one year minimum is imposed so that examinees will have a reasonable

opportunity for employment. A two year maximum is necessary so that lists shall be

replenished periodically with the names of the most competent candidates available for

employment.”); Phila. Civil Serv. Reg. 10.071 (“When a more recent list has been

established for a class, the Director may determine that a previous non-continuous or

periodic list for that class, which is more than one year old, shall be canceled and

replaced by the more recently established list, or consolidated. . . .”).

       Turning to whether promotions are a ministerial act or duty, the City argues that

they are not, and asserts that the Commissioner has discretion about when to fill

vacancies. According to the City, the Commissioner has discretion to decide whether to

spend appropriated funds, to conserve resources for future use, how to apportion funds

in the first instance, how many positions are needed, and how to structure his

supervisory and management team. The City further asserts that the Commissioner

must exercise his own judgment and opinion as to whether a promotion is proper;

whether a particular candidate should be promoted, rejected, rejected twice and not

considered again, or whether that person should remain in the position following the six-

month probationary period. Phila. Civil Serv. Reg. 11.03, 11.04, 11.05, 14.01.

       Additionally, the City asserts that other City officials have independent review

over promotions the Commissioner chooses to make.              For example, no promotion




                                       [J-3-2015] - 12
becomes final until the candidate is deemed medically fit, Phila. Civil Serv. Reg. 9.1413,

9.1415, 11.033, 11.0331, or until the Director of Human Resources determines that the

promotion was in accord with the Civil Service Regulations, id., 11.11, 11.12. Even

when a promotion has been anticipated and accounted for in the budget, it must be

approved by the Finance Director as being within the City’s finances and appropriations.

See 351 Pa.Code. § 6.6-100, 6.6-106, 8.8-102. These approvals require, to some

extent, the exercise of discretion which, according to the City, defeats the Union’s

entitlement to mandamus relief.

      Finally, the City argues that the Commonwealth Court’s decision in this case is

consistent with prior cases that have held a trial court exceeds its authority and

improperly invades a department’s discretion when it orders a city to make promotions

from a promotional list.    Trosky & Gregorchik v. Civil Service Comm’n v. City of

Pittsburgh, 652 A.2d 813, 818-19 (Pa. 1995); Walls.

      Peremptory judgment in mandamus is an extraordinary remedy utilized “to

compel performance of a ministerial act or mandatory duty where there exists a clear

legal right in the plaintiff, a corresponding duty in the defendant, and want of any other

adequate and appropriate remedy.” Philadelphia Newspapers, Inc. v. Jerome, 387 A.2d

425, 430 n.11 (Pa. 1978). A ministerial act is one which a public officer is “required to

perform upon a given state of facts and in a prescribed manner in obedience to the

mandate of legal authority.” County of Allegheny Deputy Sheriff’s Ass’n v. County of

Allegheny, 730 A.2d 1065, 1067-68 (Pa.Cmwlth. 1999). A writ of mandamus cannot

issue to “compel performance of a discretionary act or to govern the manner of

performing [the] required act.” Fagan v. Smith, 41 A.3d 816, 817 (Pa. 2012). A clear

legal right to relief is shown where the right to require performance of the act is clear,

Shroyer v. Thomas, 81 A.2d 435, 436 (Pa. 1951), and a corresponding duty is shown




                                     [J-3-2015] - 13
where the governing law contains directory language, requiring that an act shall be

done. Stork v. Sommers, 630 A.2d 984, 986-87 (Pa.Cmwlth. 1993). A ministerial act

admits of “no discretion in the municipal officer[.]” Llormer v. Bowen, 188 A.2d 747, 750

(Pa. 1963). A want of any other adequate remedy is established where there is no

alternative form of relief. Styers v. Wade, 372 A.2d 1236, 1238 (Pa.Cmwlth. 1977).

       Mindful that mandamus is an extraordinary remedy dependent on a clear legal

right in the plaintiff, here, the Union, we agree with the City and the Commonwealth

Court that 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.

       To support its legal right to immediate promotion whenever a vacancy arises, the

Union relies on Section 7-401(e) of the Home Rule Charter (“[v]acancies shall be filled

by promotion whenever possible. . . .”) and Civil Service Regulation 9.021 (“[u]nless

vacancies are filled by demotion, transfer, reinstatement, or by certification from a layoff

list, they shall be filled so far as practicable by the promotion of permanent employees

in the Civil Service.”).   These provisions, however, read in isolation or in context,

indicate that when vacancies are filled, the City is required to fill them by promotion as

opposed to another method of hiring, such as hiring from the outside.           Use of the

phrases “whenever possible” and “so far as practicable” modify the manner of filling

vacancies, i.e., by promotion. They emphasize that the preferred method of doing so is

by promotion, and direct that only when promotion is not possible or practicable can the

City consider other methods of filling a vacancy.

       The annotation to Section 7-401(e) of the Home Rule Charter supports this

conclusion, providing that promotion is an important incentive for achievement and




                                      [J-3-2015] - 14
continued municipal employment. Its emphasis is upon the significance of promotion in

municipal employment, rather than on filling vacancies as soon as they arise. Reading

Section 7-401(e) together with its annotation establishes that whenever possible the

City should prioritize promotion and career advancement of municipal employees when

it fills vacancies.   Civil Service Regulation 9.021 restates this preference, placing

promotion behind demotion, transfer, reinstatement, and from a layoff list as the

sanctioned methods for filling vacancies.

       In addition to failing to establish a clear legal right to relief, the Union has failed to

establish a corresponding duty in the City. As established above, neither Section 7-

401(e) of the Home Rule Charter nor Civil Service Regulation 9.021 require the City to

fill vacancies immediately, and no other provision of the Charter or regulations imposes

such a requirement upon the City.         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.” 351

Pa.Code § 7.7-401(f); Phila. Civil Serv. Reg. 10.071. Moreover, the regulations provide

that the City “may” certify and appoint eligible candidates at any time after a list is

established until it expires. Phila. Civil Serv. Reg. 10.022. The regulation does not

require the City to do so, nor does it contemplate promotion by a certain date.

       Our conclusion that the Union is not entitled to mandamus relief is consistent with

our precedent and that of the Commonwealth Court. In Trosky, two police officers

claimed they were improperly removed from a promotional list. 652 A.2d at 813-16.

The officers asserted that the only proper remedy was promotion, because the list from

which their names had been improperly removed had expired. The trial court agreed




                                        [J-3-2015] - 15
and ordered the City of Pittsburgh to promote them.           The Commonwealth Court

affirmed.

       Before this Court, the City of Pittsburgh argued that promotion was not the proper

remedy because it infringed on the Public Safety Director’s discretion and put the

officers in a better position than they would have been in if their names had not been

struck. Considering the appropriate remedy, we agreed with the City of Pittsburgh that,

given the discretion vested in the Public Safety Director, if the two officers’ names had

remained on the promotional list, it was not certain they would have been promoted, as

the Public Safety Director could have chosen to pass them over. Id. at 817. We held

that the relief ordered by the trial court “had the effect of interfering with the decision-

making authority accorded by statute to the Public Safety Director,” who may have

exercised his discretion not to promote the two officers, and was ordered “without

regard to the administrative consequences of such action.” Id. at 818. We directed the

City of Pittsburgh to put the officers back on the promotional list, make promotions in

accord with established procedures, and ensure that any unsuccessful candidate was

given the opportunity to be placed on the next promotional list by sitting for the required

examination.    Id. at 820.    Trosky therefore recognized the managerial discretion

inherent in the timing of making promotions.

       Moreover, both Commonwealth Court cases relied upon by the Union stand for

the unremarkable proposition that the City cannot disregard the civil service regulations.

In Walls, the City and a group of civil service applicants agreed to extend a promotional

list beyond the two years provided for in the civil service regulations. 646 A.2d at 594.

Another group of applicants challenged this decision, arguing that the list expired after

two years by operation of law. Id. The trial court agreed, ordering the City to disregard

the old list, and to conduct a new promotional examination “forthwith.” Id. at 595. On




                                      [J-3-2015] - 16
appeal, the Commonwealth Court examined the Home Rule Charter and the Civil

Service Regulations and agreed with the trial court that there was no exception to the

two-year mandatory expiration of promotional lists. Id. at 595-96. The Commonwealth

Court held, however, that the appropriate remedy was not to order immediate

administration of a new promotional exam, because the timing and scheduling of

examinations is a matter within the discretion of the Director of Human Resources.

Rather, the Commonwealth Court stated that the Director “may now, at any time,

reschedule another examination wherein the parties . . . would have the same

opportunity to participate and compete.” Id. at 596-97. See also City of Philadelphia,

574 A.2d 126-27 (holding that because the Home Rule Charter requires examinations

that test the relative fitness of applicants for the position of police officer, the City’s

institution of a new procedure that ranked applicants on an eligibility list in random order

was contrary to this requirement and, therefore, legally improper).

       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.

       Mr. Chief Justice Saylor, Mr. Justice Eakin and Madame Justice Todd join the

opinion.

       Mr. Justice Stevens files a concurring opinion.




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