The opinion
NEWMAN, Judge,
dissenting.
I respectfully dissent to the majority opinion as it affects the Nodiff group.
The majority is correct in its position that “common and basic” to all of Appellants’ arguments is their assertion that the trial court erred in concluding that the 1991 List could not be extended as a matter of law. The majority disposes of Appellants’ contentions in this regard by concluding that “it is beyond peradventure that a civil service promotion list cannot be extended beyond two years.” Majority opinion at 180. While I agree that this rule should be applied in the usual situation, I cannot, under the facts of this case, concur with the majority opinion in this respect. By its holding, the majority has inhibited this court’s equitable and remedial functions.
Some additional factual background concerning the Nodiff group is necessary to understand this dissent. All members of the Nodiff group passed both components of the Spring 1991 exam for promotion to lieutenant. Departmental policy required that a candidate’s position on the list be determined from a combination of a written test (which was also to comprise forty-five percent of the score), an oral test (which was to comprise forty-five percent of the score), and a seniority rating (which was to comprise ten percent of the score). However, the list in the Spring of 1991 reflected a different weighing of the scores: the oral component comprised sixty-two percent, the written component comprised thirty-one percent, and seniority comprised seven percent. Because of the *185 irregularities in the compilation of the list, members of the Nodiff group were not included with the fifty-six sergeants who were promoted to lieutenant on June 24, 1991. An expert testified at the preliminary injunction hearing that had the Department correctly compiled the scores, the entire Nodiff group would have been promoted to lieutenant. For example, Laurence Nodiff, who was initially ranked number sixty-five on the eligibility list, would have been ranked number thirty-one had the list been compiled according to departmental policy.
The majority relies on Section 13 of the Act of June 25, 1919, P.L. 581, as amended, 53 P.S. § 12633, Section 7.7-401(f) of the Philadelphia Home Rule Charter, 351 Pa.Code § 7.7-401(f) and Section 10.071 of the Philadelphia Civil Service Regulation. These sections provide that an eligibility list shall not remain in force longer than two years. I would hold that there is an exception to this time period when there are acknowledged deviations and/or inconsistencies in the scoring of the exams. In the instant case, the Department itself admitted that it improperly scored the exams and agreed with the respective parties to extend the eligibility list beyond its expiration date.
In footnote three of its opinion, the majority itself acknowledges that in certain situations a court may be permitted to remedy an injustice. However, the majority distinguishes Commonwealth v. O’Neill, 100 F.R.D. 354 (E.D.Pa.1983), affirmed, 746 F.2d 1465 (3rd Cir.1984), from the present case by stating that in “that case the list was extended because of the overriding federal policy of remedying racial discrimination. No such issue is presented here.” Majority opinion at 182. This is undoubtedly correct; however, the distinction is of no consequence. The proper focus should be on the paramount issue of whether a court may extend an eligibility list beyond two years to remedy departures from correct scoring procedures.
In O’Neill , the court, faced with invidious discrimination, properly extended the eligibility list beyond the two-year period. In the instant case, while this court is not faced with a *186 wrong of the same nature, it is nevertheless faced with a serious inequity. Specifically, if the exams had been graded correctly, all members of the Nodiff group would now be lieutenants. Instead, the group must retake the exam with no assurances that they will be within the group that is eventually promoted. We cannot ignore this issue by assuming if an individual scores satisfactorily in one instance that they will do so the next time they take the examination; this is a cavalier presumption. Thus, I would hold that the trial court abused its discretion 1 when it held that the 1991 eligibility list could not be extended beyond the two year statutory period.
. In reviewing a grant of permanent injunctive relief, this court must determine whether the trial court abused its discretion or committed an error of law. Fraternal Order of Police, Lodge No. 5 v. City of Philadelphia, 139 Pa.Commonwealth Ct. 256, 590 A.2d 384 (1991).