Markel v. McIndoe

Opinions of the United

1995 Decisions States Court of Appeals

for the Third Circuit

7-11-1995

Markel v McIndoe

Precedential or Non-Precedential:

Docket 94-3152

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UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

NO. 94-3152

_______________

WILLIAM S. MARKEL

Appellant

v.

HARRY R. MCINDOE; MUNICIPALITY OF PENN HILLS,

a municipal corporation

Appellees

_______________

On Appeal from the United States District Court

for the Western District of Pennsylvania

D.C. No. 92-1551

_______________

Argued: September 20, 1994

______________

Before: BECKER and COWEN, Circuit Judges

and POLLAK, District Judge*

(Filed July 11, 1995)

Michael Louik, Esq. (Argued)

Berger, Kapetan, Meyers, Rosen,

Louik & Raizman

200 Frick Building

Pittsburgh, PA 15219

Attorney for Appellant

J. Alan Johnson, Esq.

Swensen, Peter & Johnson

Two PNC Plaza

*

. Honorable Louis H. Pollak, United States District Judge for

the Eastern District of Pennsylvania, sitting by designation.

Suite 2710

Pittsburgh, PA 15222

Attorney for Appellee

Harry R. McIndoe

Wayne V. DeLuca, Esq. (Argued)

Damian & DeLuca

816 5th Avenue

Pittsburgh, PA 15219

Attorney for Appellee

Municipality of Penn Hills

_____________

OPINION OF THE COURT

_______________

POLLAK, District Judge.

This is an action brought pursuant to 42 U.S.C. § 1983

in which appellant alleged that he was denied opportunities for

promotion in violation of his First and Fourteenth Amendment

rights. Appellees countered that the decisions to promote

persons other than appellant were made on the merits.

Subsequently appellees presented the additional contention that,

in any event, they were, as a matter of law, required by 51 Pa.

Cons. Stat. Ann. § 7104(b)  a section of Pennsylvania's

Veterans' Preference Act of August 1, 1975  to promote eligible

veterans ahead of appellant, a non-veteran. On the latter ground

appellees moved for summary judgment. The district court granted

summary judgment. We reverse and remand.

I

The appellant in this action is William Markel, a

police officer employed by the Municipality of Penn Hills

[hereinafter "Penn Hills"]. The appellees are Harry McIndoe and

Penn Hills. Mr. McIndoe has been municipal manager of Penn Hills

during all times relevant to this litigation. As municipal

manager, he has authority over the promotions of Penn Hills

police officers.

On November 4, 1986, McIndoe was arrested on a charge

of operating a motor vehicle while under the influence of

alcohol. Markel participated in the arrest and testified against

McIndoe at a preliminary hearing held on January 27, 1987.

Markel again testified against McIndoe at a related appellate

hearing held on March 30, 1988. Following these proceedings,

McIndoe entered and successfully completed a rehabilitation

program.

Some years later  in November 1991  Markel

participated in a civil service examination, the purpose of which

was to determine eligible candidates for promotion to the rank of

sergeant in the Penn Hills Police Department. According to the

Sergeant Candidates Eligibility List posted on December 9, 1991,

Markel ranked second out of twenty-one candidates for promotion.

On December 19, 1991, the person ranked third on the elibility

list was promoted to sergeant. On January 17, 1992, the person

ranked first was promoted. On February 2, 1992, the person

originally ranked fourth was promoted.

Markel subsequently instituted this § 1983 lawsuit,

contending that he had been passed over for promotion to sergeant

in retaliation for his activities relating to McIndoe's arrest

and court hearings. Such retaliation, he claimed, constituted a

violation of his constitutional rights under the First and

Fourteenth Amendments.1 Denying Markel's allegations, appellees

contended that the decisions to promote police officers other

than Markel had all been made on the merits.

At some point after the completion of discovery,

appellees learned of this court's decision in Carter v. City of

Philadelphia, 989 F.2d 117 (3d Cir. 1993)  and, evidently,

Carter led appellees to think about the Veterans' Preference Act

and, in particular, the provision codified at 51 Pa. Cons. Stat.

Ann. § 7104(b). Section 7104(b) reads as follows:

Whenever any soldier [i.e. veteran] possesses

the requisite qualifications, and his name

appears on any eligible or promotional list,

certified or furnished as the result of any

such civil service examination, the

appointing or promoting power in making an

appointment or promotion to a public position

shall give preference to such soldier,

notwithstanding, that his name does not stand

highest on the eligible or promotional list.

1

. Officer Markel also contended that he was similarly denied

transfers to other, non-civil service, positions.

51 Pa. Cons. Stat. Ann. § 7104(b) (1976).2 After reviewing the

lists of those police officers certified as eligible for

promotion to sergeant, appellees moved for summary judgment.

Their argument  which the magistrate judge found persuasive 

was that, although § 7104(b) concededly played no actual role in

appellees' decisions relating to Markel, § 7104(b) would in any

event have prohibited appellees from promoting Markel ahead of

any eligible veterans. According to the findings of the

magistrate judge, fourteen of the twenty-one persons on the

December 9, 1991 eligibility list were veterans, including each

of the persons promoted to sergeant. In a brief order, the

district judge adopted the report and recommendation of the

magistrate judge.

On appeal, Markel argues that it was error to grant

summary judgment. Appellant's first and second arguments concern

the interpretation and validity of § 7104(b). Specifically,

appellant contends that: (1) § 7104(b), properly read, does not

mandate the promotion of a veteran on a civil service eligibility

list ahead of more qualified non-veterans; and (2) that the

promotional preference contemplated by § 7104(b), if it does so

mandate, contravenes the Pennsylvania Constitution and also the

federal Constitution. Alternatively, appellant contends that

2

. The provision was originally enacted as part of section 4 of

the Pennsylvania Veterans' Preference Act of 1945, 51 Pa. Stat.

Ann. § 492.4. That section was reenacted in 1975 as part of the

Veterans' Preference Act (Chapter 71 of the Military Code) of

August 1, 1975, which took effect January 1, 1976.

since § 7104(b) was not in fact an ingredient of appellees'

decisions to promote other officers in preference to appellant,

§ 7104(b) is irrelevant to the question whether appellees

trespassed on appellant's First and Fourteenth Amendment rights;

in appellant's view, § 7104(b) either has no proper role in this

case or should, at most, be considered only with respect to

remedy.3 We will first turn to appellant's argument regarding

the interpretation of § 7104(b).

II

Section 7104(b)  which applies to both appointments

and promotions  provides that the appointing or promoting

authority "shall give preference" to any veteran whose name is on

the eligible or promotional list "notwithstanding, that his name

does not stand highest on the eligible or promotional list."

Appellant contends that the magistrate judge  whose opinion was

adopted by the district court  erred in construing the statute,

pursuant to Pennsylvania case law, "as requiring the promoting

power to appoint a veteran over a non-veteran." According to

appellant's intepretation of § 7104(b), a non-veteran may be

3

. Appellant also contends that, even if § 7104(b) precludes

relief on his claim that he was wrongfully denied promotions to

sergeant, he has also presented claims of wrongful denial of

transfers to other, non-civil service, positions  claims which,

appellant argues, are outside the ambit of § 7104(b) and were not

addressed by the magistrate judge and the district court.

promoted over a veteran where "the non-veteran possesses superior

individual qualifications for the promotion being sought."

Appellant's Supp. Mem. of September 14, 1994, at 3. But

appellant's interpretation of § 7104(b) is without support in the

Pennsylvania cases.

The courts which have previously examinined § 7104(b)

have construed the "shall give preference" language as a mandate

that any veteran on a civil service eligibility list is to be

preferred over any non-veteran on the list. Thus, in Rasmussen

v. Borough of Aspinwall, 519 A.2d 1074 (Pa. Commw. Ct. 1987),

appeal granted, 533 A.2d 94 (Pa. 1987)4  a case on which the

magistrate judge relied  the Commonwealth Court reversed the

Court of Common Pleas' determination that § 7104(b) did not

require the appointment of the only veteran on the certified

list. As stated by the Commonwealth Court, "[w]hile [§ 7104(c)]

permits Borough Council to select a veteran who is not among the

three highest scoring applicants by using the word 'may,' Section

7104(b), by use of the imperative 'shall,' commands Council to

appoint the certified veteran if he or she is one of three on the

certified list." 519 A.2d at 1076. See also G. Gordon

Brickhouse v. Spring Ford Area School Dist., 625 A.2d 711, 715

(Pa. Commw. Ct. 1993) ("[Section 7104(b)] is to be applied in the

same manner as the preference in Section 7104(a)  the qualified

4

. Upon inquiry to the administrative office of the Pennsylvania

Supreme Court, we were informed that the appeal in Rasmussen was

discontinued on March 9, 1988.

veteran must be awarded the position, even if he or she stands

lowest on the list."), rev'd on other grounds, 656 A.2d 483 (Pa.

1995); Feinerman v. Jones, 356 F. Supp. 252, 257 (M.D. Pa. 1973)

(interpreting the identically-worded precursor to § 7104(b) in

the appointments context) ("It is true that under Section 4 of

the Act, if one of the three names is a veteran, he must be given

an absolute preference . . . .").5 To be sure, each of the cases

just cited arose in the context of appointments, not promotions;

but the phrase "shall give preference" comprehends both

appointments and promotions, and the Pennsylvania case law offers

no ground for reading the same words as mandatory in one setting

and non-mandatory in another. Indeed, in a recent promotion case

arising under § 7104(b), the Allegheny Court of Common Pleas

looked to the appointments cases as controlling authority

compelling an absolute preference for any veterans, as against

5

. This interpretation is buttressed by the Pennsylvania Supreme

Court's opinion in Commonwealth ex rel. Graham v. Schmid, 3 A.2d

710 (Pa. 1938)  a case discussed in further detail in part III

of this opinion. Schmid addressed, inter alia, a veterans'

preference law requiring that "[a]mong those persons possessing

qualifications and eligibility for appointment, preference in

appointment shall be given to honorably discharged soldiers and

sailors who served in the Army or Navy of the United States

during time of war." 3 A.2d at 702 n.1 (quoting § 4407 of the

Third Class City Law of June 23, 1931). The Schmid Court

interpreted the language as conferring an absolute preference:

"The provision that those in the first four of the eligible list

shall be preferred, appearing in the same section, must . . . be

construed to be mandatory, with the exception that the appointing

power need not select such veteran if it is found on a fair basis

that he is morally or physically unfit to be employed." Id. at

706 (emphasis added by Schmid court).

any non-veterans, on the promotional list. City of Pittsburgh v.

Fraternal Order of Police, Fort Pitt Lodge No. 1, No. GD94-017598

at 14 (Ct. C.P. Allegheny County Nov. 9, 1994) ("Pennsylvania

appellate court case law holds that § 7104(b) mandates that the

qualified veteran be awarded the position, even if he or she

stands lowest on the eligibility list.").

We see no reason to depart from this interpretation.

We conclude that § 7104(b)  considered apart from

constitutional objections  requires the promotion of any

veteran on the eligilibity list over any non-veteran.

III

Having determined that § 7104(b) contemplates a

mandatory promotional preference for veterans over non-veterans,

we now turn to the question whether, as so construed, § 7104(b)

offends the Pennsylvania Constitution.

A. The Validity under the Pennsylvania Constitution of Veterans'

Preference Statutes that Antedated the Present Statute

In order to put this state constitutional claim in

doctrinal context, we begin our analysis by referring to

decisions of the Pennsylvania Supreme Court construing statutory

schemes which preceded the current Veterans' Preference Act.

Almost sixty years ago, in Commonwealth ex rel. Graham

v. Schmid, 3 A.2d 701 (Pa. 1938), the Pennsylvania Supreme Court

considered constitutional challenges to two provisions of the

Third Class City Law of June 23, 1931. Section 4405, 53 P.S.

§ 12198-4405  one of the two challenged provisions  directed

that whenever any honorably discharged war veteran who was a

candidate for appointment or promotion:

shall take any examination for appointment or

promotion, his examination shall be marked or

graded fifteen per centum perfect before the

quality or contents of the examination shall

be considered. When the examination of any

such person is completed and graded, such

grading or percentage as the examination

merits shall be added to the aforesaid

fifteen per centum, and such total mark or

grade shall represent the final grade or

classification of such person and shall

determine his or her order of standing on the

eligible list.

The other challenged provision  Section 4407, 53 P.S. § 12198-

4407  (1) required municipal authorities to give a preference,

in making appointments to the jobs in question, to any honorably

discharged war veterans who, having passed a prescribed civil

service examination, were among the top four persons on the

eligible list, and (2) authorized the appointing authorities to

extend a preference to veterans with a passing grade even if they

were not among the top four.

The litigation that came before the Pennsylvania

Supreme Court was triggered by the action of the City of Erie in

appointing to the post of assistant building-inspector a non-

veteran, Joseph A. Schmid. Schmid stood highest among the

fifteen persons certified as achieving a passing grade of 70.0 or

better on the civil service examination. Schmid's grade was

94.2. James J. Leach, a veteran, was second: his grade  with

the aid of the fifteen percent bonus mandated by § 4405  was

92.4. Stephen P. Markham, also a veteran, was fourth: his grade

 with the aid of the fifteen-percent bonus  was 83.0; without

the bonus Markham would not have achieved a passing grade. When

Schmid was appointed assistant building-inspector, Leach and

Markham instituted quo warranto proceedings in the Court of

Common Pleas. Losing in that court, they appealed to the state's

highest court.

The questions addressed by the Pennsylvania Supreme

Court were whether, in the context of appointment to a municipal

position, § 4405  adding fifteen-percent to a veteran's civil

service score  and § 4407  requiring a preference for a

veteran among the top four successful examinees, and permitting a

preference for other veterans who had passed the examination 

offended Article III, Section 7 of the Pennsylvania Constitution

which, at that time, barred the General Assembly from "pass[ing]

any local or special law . . . [g]ranting to any corporation,

association, or individual any special or exclusive privilege or

immunity . . . ." Speaking through Chief Justice Kephart, the

court ruled unanimously that (1) § 4407's mandatory preference

for a veteran listed among the top four successful examinees was

valid, but (2) § 4405's fifteen percent bonus for all veterans,

including those who without the bonus did not achieve a passing

grade, was invalid.

En route to reaching these conclusions, Chief Justice

Kephart canvassed numerous cases in other jurisdictions assessing

similar statutes:

The underlying principle in all cases is

that to sustain any preference the veteran

must possess the minimum qualifications to

perform the duties involved. . . . The theory

on which the cases are decided is that, while

it may be perfectly lawful to prefer

veterans, there must be some reasonable

relation between the basis of preference and

the object to be obtained, the preference of

veterans for the proper performance of public

duties. . . .

As a basis for appointment it is not

unreasonable to select war veterans from

candidates for office and to give them a

certain credit in recognition of the

discipline, experience and service

represented by their military activity. No

one should deny that these advantages are

conducive to the better performance of public

duties, where discipline, loyalty, and public

spirit are likewise essential. The fact that

veterans either through voluntary enlistment

or conscription have been to wars for the

preservation of their country should be given

some consideration. It is the greatest

service a citizen can perform, and it comes

with ill grace for those of us not in such

wars to deny them just consideration. Where

the preferences reasonably and fairly

appraise these advantages, there can be no

question of illegal classification and

arbitrary privilege. But, on the other hand,

where war service is appraised, in the

allotment of public positions, beyond its

value, and the preference goes beyond the

scope of the actual advantages gained in such

service, the classification becomes void and

the privilege is held unreasonable and

arbitrary.

3 A.2d at 704. From these premises, illuminated by extensive

reference to the case law in other states, it followed that:

There can be no objection to the provision

of section 4407 which permits a preference of

any veteran on the eligible list. The

provision that those in the first four of the

eligible list shall be preferred, appearing

in the same section, must, however, be

construed to be mandatory, with the exception

that the appointing power need not select

such veteran if it is found on a fair basis

that he is morally or physically unfit to be

employed. Thus construed it is

constitutional under all the cases which have

been cited. In none of those was a mandatory

preference for veterans who had passed the

examination held unconstitutional.

But statutes completely exempting veterans

from taking the customary examinations for

civil service positions have been ordinarily

held unconstitutional since they do not

require the appointees be fit for the

position. . . .

. . . .

It therefore clearly appears that the

decisions of other states condemn the

provision of section 4405 giving fifteen

percent credit in advance to veterans as

unconstitutional. It is not distinguishable

from a statute which would allow a fifteen

percent lower passing grade for veterans. It

gives undue weight to the military and public

experience of the veterans and in that way

constitutes a special and exclusive

privilege.

Id. at 706-07 (emphasis in original).

Accordingly, the court reversed the judgment of the

trial court; since § 4407 was valid, and Leach was found to rank

among the top four successful examinees even without the flawed

fifteen-percent bonus, the trial court on remand was directed to

enter judgment ordering the removal of Schmid and also ordering

the appointment of Leach, unless Leach was found to be physically

or morally unfit.

A year after Schmid, the Pennsylvania Supreme Court, in

Carney v. Lowe, 9 A.2d 418 (Pa. 1939), addressed another

controversy arising in Erie under the Third Class City Law. This

time the issue was the propriety of including, on the list of

persons certified as eligible for appointment, fifteen veterans,

all of whom (1) had passed the required civil service examination

but (2) were older (they ranged in age from thirty-seven to

forty-four) than the age ceiling for initial appointment as a

police officer  namely, the age of thirty-five  prescribed by

the civil service board. The inclusion of the veterans was

deemed to be justified (or perhaps mandated) by the final

sentence of § 4407: "Such [preferential] appointment of

soldiers, sailors and marines may be made without regard to any

age limitations now provided for by law or the rules and

regulations of any board or commission having in charge civil

service regulations in any county, city or borough."

On application of fifteen non-veterans who had passed

the civil service examination, the Court of Common Pleas ordered

that the names of the fifteen veterans be removed from the

eligible list. In a unanimous ruling the Pennsylvania Supreme

Court affirmed. Speaking through Justice Horace Stern, the court

found the issue to be controlled by the previous year's ruling in

Schmid. Applying Schmid, the Court said:

To require that an applicant for a position

in the police department be below a certain

age is the prescription of a qualification

for eligibility. To permit war veterans to

be appointed even though above such maximum

is not the mere granting to them of a

preference if otherwise eligible but the

setting up for them of a standard of

eligibility different from that established

for other applicants. Therefore it is clear

that the permitted waiver of the age limit

provided by section 4407 is unconstitutional.

9 A.2d at 420.

In a footnote to his opinion in Carney v. Lowe, Justice

Stern pointed out that the legislature had, on June 27, 1939,

passed a new statute intended, according to section 5, 51 Pa.

Stat. Ann. § 491.5, to serve as "'the exclusive law applying to

the Commonwealth and its political subdivisions in giving

preference to soldiers in appointment to public position.'" Id.

at n.2. Six years later, in the spring of 1945, with the end of

World War II in sight, the legislature enacted the Veterans'

Preference Act of May 22, 1945, which replaced the 1939 statute.

The 1945 statute became the focus of Commonwealth ex rel. Maurer

v. O'Neill, 83 A.2d 382 (Pa. 1951), a further examination of the

constitutionality of veterans' preference statutes. The

Pennsylvania Supreme Court has not addressed the

constitutionality of such statutes since O'Neill.

While Schmid and Carney v. Lowe dealt with initial

appointment to public office, O'Neill dealt with promotion  the

process at issue in the case at bar. The focus of O'Neill was

Section 3 of the Veterans' Preference Act of May 22, 1945, which

provided as follows:

Whenever any soldier [i.e. veteran] shall

successfully pass a civil service appointment

or promotional examination . . . such

soldier's examination shall be marked or

graded an additional ten points above the

mark or grade credited for the examination

and the total mark . . . thus obtained . . .

shall determine his standing on any eligible

or promotional list, certified or furnished

to the appointing or promoting power.

In 1949, the Fire Bureau of the City of Philadelphia

conducted a civil service examination for promotion to the rank

of captain. George Braden, a non-veteran, achieved a passing

grade of 79.59. Among the other officers who passed the

examination were certain veterans who, with the aid of the

"additional ten points" called for by Section 3 of the Veterans'

Preference Act, achieved scores of 81.47 to 88.05. In

consequence, the veterans were promoted to captain and Braden was

not. Braden then brought a quo warranto proceeding in the Court

of Common Pleas, challenging the constitutionality of Section 3.

Losing in the trial court, Braden appealed to the Pennsylvania

Supreme Court. That court reversed the judgment of the Court of

Common Pleas and directed that the several challenged promotions

be rescinded.

The opinion in O'Neill was delivered by Chief Justice

Drew. The core of the court's holding is contained in the

following paragraphs:

At the outset it is conceded that the

granting of a preference in the case of

original appointments is constitutional.

That question was decided in Commonwealth ex

rel. Graham v. Schmid, 333 Pa. 568, 3 A.2d

701, 120 A.L.R. 777. We there laid down the

test to be used in determining such cases,

stating 333 Pa. at p. 573, 3 A.2d at page

704: ". . . there must be some reasonable

relation between the basis of preference and

the object to be obtained, the preference of

veterans for the proper performance of public

duties. Public policy, as well as

constitutional restrictions, prohibits an

unrestrained preference as it does a

preference credit based on factors not

representative of their true value."

When we apply that test to the facts of

this case, we can come only to the conclusion

that, because of the difference between an

original appointment and a promotion, the

award of the ten percentage point preference

to veterans in examinations for promotions is

unreasonable and therefore unconstitutional.

In the Schmid case, Mr. Chief Justice Kephart

pointed out that preferences to veterans in

appointments to public office are reasonable

because the discipline, experience and

service represented by the veterans' military

activity makes them more desirable applicants

for public positions where discipline,

loyalty and public spirit are essential, than

those who have not served in one of our

military organizations. But, the former

Chief Justice qualified the right of the

legislature to grant such preferences when he

added that "where war service is appraised,

in the allotment of public positions, beyond

its value, and the preference goes beyond the

scope of the actual advantages gained in such

service, the classification becomes void and

the privilege is held unreasonable and

arbitrary." We do not doubt but that the

military training received by veterans during

the course of their service renders them

superior candidates for public offices of the

nature now under consideration. However, we

are convinced that the legislature, in

authorizing the addition of ten percentage

points to the veterans' final examination

marks in all competitive examinations for

higher positions that the original

appointments, has placed far too high a value

on the benefit to the public service of the

military training of veterans. In the case

of an original appointment, the training a

veteran has received in the armed forces

will, no doubt, make him more amenable to the

following of orders, the observance of

regulations and, in other ways, tend toward

making him a desirable employee. But the

advantages to the public of this training are

not absolute and, as time passes, the

proportional benefit accruing to the public

from the employment in such a service of

veterans in preference to non-veterans

gradually diminishes as both become

proficient in the performance of their

duties. In determining who is to be awarded

a promotion, the skill of the particular

examinees in the performance of their tasks

is the prime consideration and compared to it

the training gained by veterans solely as a

result of military service becomes of very

little importance. To credit veteran

examinees in examinations for successive

promotions with the same total of gratuitous

percentage points as in the instance of their

original appointment to a public position is,

therefore, a totally unjustified appraisal of

the value of their military training and

highly prejudicial to the public service.

. . . .

It follows from what has been said that

the Veterans Preference Act, in granting the

same preference to veterans in examinations

for promotions as is granted in their

original appointments to a public office is

unreasonable and class legislation and

therefore unconstitutional.

83 A.2d at 382-84.6

B. The Present Statute

The present veterans' preference statute  the statute

of which § 7104(b) is a part  is the Veterans' Preference Act

of August 1, 1975, which took effect on January 1, 1976. On June

15, 1976, the Attorney General of Pennsylvania issued Opinion No.

76-17. That Opinion addressed the constitutionality of the two

provisions of the present statute which are derived from  and,

indeed, in their effective operative language, are verbatim

continuations of  the statutory provisions considered in Schmid

and O'Neill. One of the two provisions addressed by the Attorney

General was current § 7103(a), which adds ten points to the

examination score of a veteran who "shall successfully pass a

civil service appointment or promotional examination." The other

provision addressed by the Attorney General was current

§ 7103(b), which directs that a veteran's examination "shall be

marked or graded 15% perfect before the quality or contents of

6

. Justice Allen Stearne, joined by Justices Horace Stern and

Grover Ladner, dissented; the dissenters found no difference of

constitutional magnitude between an original appointment and a

promotion.

the examination shall be considered." With respect to § 7103(a),

the Attorney General characterized O'Neill's assessment of the

virtually identical provision in the 1945 Veterans' Preference

Act as a holding that the provision "was unreasonable and class

legislation insofar as it attempted to grant veterans a 10 point

preference on promotion examinations." Opinions of the Attorney

General of Pennsylvania, No. 76-17, at 54 (1976). With respect

to § 7103(b), the Attorney General characterized Schmid's

assessment of the virtually identical provision of the 1931 Third

Class City Law as a holding "that a credit to veterans of points

to aid them in passing civil service examinations is

unconstitutional," a holding "reaffirmed by the [Pennsylvania]

Supreme Court in Carney v. Lowe." Id. at 55. The Attorney

General then stated:

The Statutory Construction Act of 1972,

provides "that when a court of last resort

has construed the language used in a statute,

the General Assembly in subsequent statutes

on the same subject matter intends the same

construction to be placed upon such

language." 1 Pa. C.S. § 1922(4). Thus,

reenactment continues the prior law,

including all judicial construction thereof.

Consequently, the two provisions in question

are still unconstitutional.

Id.

Like §§ 7103(a) and (b), discussed in the Attorney

General's 1976 Opinion, § 7104(b)  the statutory provision

involved in the case at bar, directing the "appointing or

promoting power" to "give preference" to a veteran whose name

appears "on any eligible or promotional list . . .

notwithstanding, that his name does not stand highest on the

eligible or promotional list"  was drawn essentially verbatim

from antecedent veterans' preference legislation.7 Presumably,

the fact that the Attorney General did not mention § 7104(b) in

his 1976 Opinion traces to the fact that § 7104(b)'s statutory

ancestor was not discussed in Schmid, Carney v. Lowe, or O'Neill.

In 1993, when this court, in Carter v. City of Philadelphia, 989

F.2d 117 (3d Cir. 1993), had occasion to consider § 7104(b) 

holding that Philadelphia's Civil Service Regulations were

preempted by the state statute  we noted that "[t]he

constitutionality of the preference of § 7104(b) or its prior

identical provision in 51 P.S. § 492-4 is not before us, nor does

it appear, historically, to have ever been challenged on these

grounds before the Commonwealth's appellate courts." Id. at 121

n.5.8

The question not before the Carter court is presented

by the case at bar. In examining that question, we first inquire

whether  given that the Pennsylvania Supreme Court has not had

occasion to assess the constitutionality of veterans' preference

statutes for over forty years  the constitutional framework

7

. See note 2, supra.

8

. Subsequent to Carter, the constitutionality of § 7104(b), as

applied in a promotional context, was addressed by Judge Wettick

of the Allegheny County Court of Common Pleas. On the authority

of O'Neill, Judge Wettick held that in a promotional context

§ 7104(b) is unconstitutional. See note 13, infra.

erected by that court starting in the late 'thirties and

continuing into the 'fifties is still in place.

It was in 1975 that the Attorney General of the

Commonwealth  looking back to Schmid, decided in 1938, and to

the two cases which followed it, Carney v. Lowe, decided in 1939,

and O'Neill, decided in 1951  concluded that the decades-old

trilogy stated enduring constitutional doctrine. Is it the case

that the lapse of almost twenty years since the Attorney General

rendered his Opinion has undermined the authority of Schmid and

its sequelae?

Just three months ago, the Pennsylvania Supreme Court,

in Brickhouse v. Spring-Ford Area School District, 656 A.2d 483

(Pa. 1995) offered strong evidence that Schmid remains a

controlling precedent. Brickhouse presented a question as to the

proper interpretation of § 7104(a)  a companion to § 7104(b) 

which provides a "preference" in appointments and promotions to

non-civil service public positions for any veteran possessing

"the requisite qualifications."9 The plaintiff in Brickhouse was

a veteran who, notwithstanding that he held a valid Pennsylvania

teacher's certificate, was turned down for a position teaching

social studies in the Spring-Ford Area School District; in lieu

of plaintiff the defendant school district hired a non-veteran.

9

. In contrast, section 7104(b)  the provision at issue in the

case at bar  directs that a veteran certified via a civil

service examination as qualified for appointment or promotion

shall be given "preference . . . notwithstanding, that his name

does not stand highest on the eligible or promotion list."

The plaintiff's position was "that to be qualified to teach in

Pennsylvania, the only requirements are that one be of sound

moral character, over eighteen years of age and be certified to

teach by the Commonwealth, and that once he is qualified, he must

be awarded the job." Id. at 486. The school district's position

was "that although Brickhouse was certified to teach in

Pennsylvania, he was not qualified to teach in this particular

school district, where high academic performance, outstanding

recommendations, and current references were required." Id. at

485.

In rejecting Brickhouse's claim to a statutory

preference, the court turned for guidance to Schmid, which it

characterized as "[t]he landmark case in the area." Id. at 486.

Relying upon the analysis the court had found persuasive in

Schmid, the court in Brickhouse defined "qualified" as the

"ability to perform the job at the level of skill and with the

expertise demanded by the employer," id.  and not, as

Brickhouse urged, as "eligibility to be considered for the

position," id. at 487. Based upon this understanding of the word

"qualified," the court found that "there is no doubt that the

school district's criteria for employment were rationally related

to the job and that Brickhouse's credentials did not qualify him

for the job." Id. at 487-88. The court thus used Schmid as the

basis for a restrictive interpretation of the veterans'

preference afforded by § 7104(a).10

10

. The Brickhouse court briefly discussed the fact that the

constitutional provision upon which Schmid had relied  former

Article III, section 7  had been repealed. That section

prohibited "any local or special law . . . [g]ranting to any . .

. individual any special or exclusive privilege or immunity."

(Article 3, section 32, the current constitutional provision

barring the enactment of a "local or special law in any case

which has been or can be provided for by general law," has not

retained the "special or exclusive privilege or immunity"

language, but similar language is to be found in Article 1,

section 17, which provides that "[n]o ex post facto law, nor any

law impairing the obligation of contracts, or making irrevocable

any grant of special privileges or immunities, shall be passed.")

The Brickhouse court noted that "[i]n 1967, this [Article III,

section 7] language was deleted from the constitution by

amendment," and then went on to observe:

However, Schmid is also grounded on

constitutional principles sounding in due

process and equal protection:

[Veterans'] preferences have been

considered by the courts under

constitutional prohibitions against

special privileges and unreasonable

classification, and while the

constitutional provisions differ

somewhat in the various

jurisdictions, they are similar in

that all permit reasonable

classifications and prohibit

unreasonable ones and arbitrary

privileges

Brickhouse, 656 A.2d at 486 (quoting Schmid, 3 A.2d at 704)

(emphasis added by Brickhouse court).

The Pennsylvania Constitution's equal protection guarantees

are understood to reside in Article 1, section 26 and Article 3,

section 32. Article 1, section 26 provides: "Neither the

Commonwealth nor any political subdivision thereof shall deny to

any person the enjoyment of any civil right, nor discriminate

against any person in the exercise of any civil right." Article

3, section 32 prohibits the General Assembly from passing any

Since the Pennsylvania Supreme Court has so recently

underscored Schmid's validity  and, in particular, the

limitations it sets forth on veterans' preferences  it seems

probable that O'Neill, which applied the principles of Schmid to

promotions, would also be regarded by that court as a precedent

that offers reliable guidance.11 It will be recalled that in

(..continued)

"local or special law in any case which has been or can be

provided for by general law," and specifically prohibits local or

special laws in eight enumerated categories. Where neither

suspect or "sensitive" classifications nor fundamental or

"important" rights are involved, the equal protection guarantees

have been intepreted to require that any distinction created by

the legislation be "'reasonable, not arbitrary'

" and "'rest[] upon a difference having a fair and substantial

relation to the object of the legislation.'" Commonwealth v.

Parker White Metal Co., 515 A.2d 1358, 1365 (Pa. 1986) (quoting

Snider v. Thornburgh, 436 A.2d 593, 597 (Pa. 1981)). Similarly,

the Pennsylvania Supreme Court has recognized that state

substantive due process guarantees prohibit laws which are

"'unreasonable, unduly oppressive or patently beyond the

necessities of the case,'" or which employ means without a "'real

and substantial relation to the objects sought to be attained.'"

Laudenberger v. Port Authority of Allegheny County, 436 A.2d 147,

156 (Pa. 1981) (quoting Gambone v. Commonwealth, 101 A.2d 634,

637 (Pa. 1954)), appeal dismissed, 456 U.S. 940 (1982). (The

source of the state substantive due process guarantees, while

frequently not identified in the caselaw, appears to be Article

1, section 1. See Pennsylvania Medical Soc'y v. Foster, 608 A.2d

633, 637 (Pa. Commw. 1992)). Thus, the applicable legal standard

set forth by current state equal protection and due process law

is, like the standard applied in Schmid, one based on

"reasonableness."

11

. In predicting how the Pennsylvania Supreme Court is likely

to resolve a question of Pennsylvania law, it is our practice to

consider "relevant state precedents, analogous decisions,

considered dicta, scholarly works, and any other reliable data

tending convincingly to show how the highest court in the state

would decide the issue at hand." McKenna v. Ortho Pharmaceutical

Corp., 622 F.2d 657, 663 (3d Cir. 1980), cert. denied, 449 U.S.

976 (1980). We find that the Brickhouse court's heavy reliance

on Schmid, its consideration of the relevant constitutional

O'Neill the court considered the constitutionality of awarding a

(..continued)

principles underlying Schmid, and, in particular, its willingness

to use Schmid as a springboard for a restrictive interpretation

of the term "requisite qualifications" in § 7104(a), offer

considerable evidence of continued allegiance to the limitations

placed on veterans' preference laws in Schmid and O'Neill 

limitations which the Pennsylvania Attorney General, in 1976,

concluded were still in effect.

It is, of course, possible that if the Pennsylvania Supreme

Court were today to be examining veterans' preference statutes

for the first time it would adopt a standard of "reasonableness"

less demanding than that applied in Schmid and reaffirmed in

O'Neill. Two federal cases rejecting equal protection challenges

to state preferential promotions statutes would, arguably, offer

support for such a relaxed standard. Koelfgen v. Jackson, 355 F.

Supp. 243 (D. Minn. 1972), aff'd mem., 410 U.S. 976 (1973); Rios

v. Dillman, 499 F.2d 329 (5th Cir. 1974). On the other hand, the

Pennsylvania Supreme Court has shown a willingness to "carefully

scrutinize the validity" of laws implicating Article 3, section

32's specific prohibition of "any local or special law . . .

[r]egulating labor, trade, mining, or manufacturing." Kroger Co.

v. O'Hara Township, 392 A.2d 266, 274 (Pa. 1978). In Kroger, the

court noted that "[w]hile there may be a correspondence in

meaning and purpose between [the federal and state equal

protection guarantees], the language of the Pennsylvania

Constitution is substantially different from the federal

constitution. We are not free to treat that language as though

it were not there." Id. After deriving from Article 3, section

32 a "duty to carefully examine any law regulating trade," id.,

the court went on to hold that Pennsylvania's scheme of Sunday

trading laws was unconstitutional  despite United States

Supreme Court precedent suggesting a more permissive approach.

Since the veterans' preference statute is a law "regulating

labor," the Pennsylvania Supreme Court could, in consonance with

Kroger, conclude that a similar, more searching, examination

should be applied to statutes providing veterans' promotional

preferences.

However, speculation about how the Pennsylvania Supreme

Court might proceed were it addressing veterans' preference

statutes for the first time need not detain us. The court has,

in fact, had occasion to consider statutes of this sort in

several cases over a space of nearly sixty years. Brickhouse

shows that the current court continues to look for guidance to

the Schmid-O'Neill jurisprudence. We see no reason to anticipate

that the court will jettison that jurisprudence.

ten-point bonus to veterans who had passed a promotional

examination for the position of fire captain. The court held

that such a bonus  placing the veterans higher on the certified

list than the non-veteran plaintiff  would have been

permissible at the initial appointment stage but was not

constitutionally supportable at the promotional stage: "the

advantages to the public of this [military] training are not

absolute and, as time passes, the proportional benefit accruing

to the public from the employment . . . of veterans in preference

to non-veterans gradually diminishes as both become proficient in

the performance of their duties" and "[i]n determining who is to

be awarded a promotion, the skill of the particular examinees in

the performance of their tasks is the prime consideration and

compared to it the training gained by veterans solely as a result

of military service becomes of very little importance." 83 A.2d

at 383.

In O'Neill, the veterans' preference held to be

unconstitutional was contingent in that a veteran on the

certified list had to score within ten points of a competitor

non-veteran to lay claim to the promotion. By contrast,

§ 7104(b) confers upon every veteran on the certified list a

promotional "preference . . . notwithstanding, that the veteran's

name does not stand highest on the . . . list."12 We conclude

12

. In Carter we noted that, although the plaintiff

"interchangeably posit[ed] a secured property right in both a

'preference in promotion' and a 'promotion' . . . [t]he

Pennsylvania statute clearly bequeaths only the lesser right 

that in light of the Pennsylvania Supreme Court's willingness to

invalidate the more limited preference scheme in O'Neill, that

court would hold § 7104(b)'s absolute promotional preference to

be unconstitutional as "'unreasonable' and 'class legislation.'"

O'Neill, 83 A.2d at 384.13

In sum, we conclude that, if the issue were to come

before the Pennsylvania Supreme Court, that court would hold

that, in the context of promotions, the veterans' preference

contemplated by § 7104(b) is incompatible with the Pennsylvania

(..continued)

that of a preference in promotion  and not an unequivocal right

to a promotion to a sergeant's position because of his veteran's

status." 989 F.2d at 119 n.4. The "lesser right"  not a right

to require that a promotional vacancy be filled but a right to

"preference" if the vacancy is filled  is, of course,

sufficient to defeat the claim of any qualified non-veteran.

13

. The point is made succinctly in the one Pennsylvania case of

which we are aware that has addressed the constitutionality of

the promotional preference contemplated by § 7104(b). In City of

Pittsburgh v. Fraternal Order of Police, Fort Pitt Lodge No. 1,

No. GD94-017598 (Ct. C.P. Allegheny County Nov. 9, 1994), Judge

Wettick put the matter as follows:

If a statutory provision which only awards

ten points to veterans who have passed a

promotional examination violates the

Pennsylvania constitutional provision

prohibiting the grant of special privileges,

a legislative provision that automatically

moves a veteran who passed the examination to

the top of the promotional list gives greater

weight to military service and, thus, is a

more egregious violation of this

constitutional provision.

City of Pittsburgh, slip op. at 14.

Constitution.14 Under these circumstances, the appellees could

not properly rely on § 7104(b) as a ground for denying appellant

a promotion. Thus, § 7104(b) was not a legally cognizable

defense against appellant's § 1983 claim.

Conclusion

For the reasons given in part III of this opinion, the

district court's grant of summary judgment was in error.

Accordingly, the judgment of the district court is reversed and

the case is remanded to the district court for further

proceedings consistent with this opinion.

14

. Appellant also contends that "for those same reasons as set

forth in O'Neill, the Act [§ 7104(b)] would violate the Equal

Protection Clause and Due Process clauses [sic] of the United

States Constitution as the Act would not be reasonably related to

any legislative purpose." Brief of Appellant at 20. Appellees

disagree, citing Hooper v. Bernalillo County Assessor, 472 U.S.

612 (1985). Since we find § 7104(b), as applied to promotions,

is inconsistent with the Pennsylvania Constitution, there is no

need for us to address the federal constitutional question. We

also need not consider appellant's claim that appellees' ex post

facto invocation of § 7104(b) should either have been wholly

disregarded or treated in a manner similar to after-acquired

evidence of employee misconduct. See McKennon v. Nashville

Banner Publishing Co., 115 S. Ct. 879 (1995); see also Mardell v.

Harleysville Life Ins. Co., 31 F.3d 1221 (3d Cir. 1994), vacated

and remanded for further consideration in light of McKennon, 115

S. Ct. 1397 (1995).