Petition — City of Altoona v. Equal Employment Opportunity Commission

Office - Supreme Court, U.S.

83-1490 FILED

MAR 9 1984

pi

3n the

Supreme Court of the Wnited States

CITY OF ALTOONA, PENNSYLVANIA,

Petitioner,

vs.

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION,

Respondent.

PETITION OF THE CITY OF ALTOONA, PENNSYLVANIA

FOR WRIT OF CERTIORARI TO THE

UNITED STATES CouRT OF APPEALS

FOR THE THIRD CIRCUIT

James A. MOLLICA, JR.

MEYER, DARRAGH, BUCKLER,

BEBENEK & ECK

2500 Grant Building

Pittsburgh, PA 15219

(412) 261-6600

Attorneys for Petitioner

City of Altoona, Pennsylvania

QUESTION PRESENTED FOR REVIEW

Whether a municipal employer enjoined by a state

court injunction—and precluded by the mandatory stare

decisis effect of two recent state appellate court decisions—

from disregarding the provisions of the applicable state

civil service legislation in effecting a budgetary reduction-

in-force of its firefighter employees, equitably should be

subject to backpay liability when the controlling state civil

service legislation is first held almost five years later to be

in contravention of the Age Discrimination in Employ-

ment Act.

ii

LIST OF PARTIES IN COURTS BELOW

The parties in the United States District Court for the

Western District of Pennsylvania and the United States

Court of Appeals for the Third Circuit were the Plaintiff

Equal Employment Opportunity Commission, and

Defendants City of Altoona, Pennsylvania, and Common-

wealth of Pennsylvania.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW .,.......

LIST OF PARTIES IN COURTS BELOW,.........

TABLE OF CONTENTS wicccssccccvsccccvnscees

TABLE OF CITATIONS ..... ccc ceeeeeeeeeenneee

OPTICS BELOW wo cc eres cecvercccvecnccevegs

TURIBDICTION wicscccccccvecccvccrencvecscees

STATUTES INVOLVED ...cccssssescccvccsenves

STATEMENT OF THE CASE,........0sssevveees

ARGUMENT os cccrcccceccscrevcecvcvescvvevens

CONCEAIBION voce rrccvccscvcvcenecenccecceges

APPEINNUIN concvcnecdecccrccnccrccevebecevveces

Judgment of United States Court

of Appeals for the Third Circuit .............

Opinion of the United States Court

of Appeals for the Third Circuit ............

Judgment of the United States District

Court for the Western District

I SS ree lla

Memorandum Opinion and Order of

the Court of Common Pleas of Blair

County, Pennsylvania,..........56sceeeeeee 14a

Order of the Court of Common Pleas of

Blair County, Pennsylvania .............565 19a

Te, eR Sg re fe my

iv

TABLE OF CITATIONS

Page

Albemarle Paper Co. v. Moody, 422 U.S. 405, 415,

DS BCL, 2IGR SBTC CEGTOP se ct vec cwsdtonvece 12, 14

Bowen y. United States Postage Service, US.

9 BED BGA, Fee CAPs oh bp ocncnerceaccosce |

City of Los Angeles Dept. af Water and Power vy.

Manhart, 435 U.S, 702, 722-23, 98 S.Ct. 1370,

RE CONTR vawds a cknccdccs bb ¥ Gudetentett 13

City of McKeesport v. International Association of

Firejghters, 41 Pa, Commw, 133, 399 A.2d 798

County of Allegheny v. Commonwealth of

Pennsylvania, 71 Pa. Commw, 32,

oe fl Rr ree re

Ehredt v. Bettwy, No, 78-3197, Slip Op. at 3-4

(Blair County C.P., Dec, 29, 1978) ..... 6.66055.

Equal Employment Opportunity Commission v.

County of Allegheny, 705 F.2d 679 “

CUR Sak Re b.c'tcs bacobbsseeseee vochees 11, 12

Equal Employment Opportunity Commission vy.

The City of Altoona, 723 F.2d 4

(34 Cap, 1963) vveccevccnvsccrceccccees 1, 14, 15

Equal Employment Opportunity Commission vy.

Wyoming, US. , 103 S.Ct.

FEO CHEER. < n't b ol bbb oie cece aswte ban las 8, 14

Kober v. Westinghouse Electric Corporation, 480

F.2d 240 (3rd Cir, 1973) ...cccceccrveeevevecs

LeBeau v. Libbey-Owens-Ford Company,

P28 «= CT GA TRS sitnctcr cect vine tire

yn.

ie

Page

Maness v. Meyers, 419 U.S, 449, 459, 95 §.Ct.

DOES Sane ancbobddbedocieccetidece 12

Schultz v. Piro, 40 Pa. Commw, 395, 399, 397

Pie Ge SOO EEP TPP ccbaccccvecccccccce 9, 10

The National League of Cities v, Usery, 426 U.S.

833, 842, 96 S.Ct. 2465, 2470 (1976) ........... 13

United States v. United Mine Workers, 330 U.S.

258, 293, 67 S.Ct. 677, 696 (1947) .. 0.6... cee 12

Accord Zinger v. Blanchette, 549 F.2d 901, 905

ED coc dectEGesetek tiece\ccdeddec 9

OTHER AUTHORITIES

Age Discrimination in Employment Act of 1967,

DE Gn ds venekb es tebectce ees i, 2, 5, 6, 7, 9,

10, 11, 12, 13, 16

ee ed, CUD bse ce diviercddchseGhneens 2, 7

EI ot nn cee balndield's bev bites ce 2, 5, 7,9

City of Altoona - Local 299 Firefighters Union

Collective Bargaining Agreement

EE REA er 7

Civil Rights Act of 1964 §71%b), 42 U.S.C

AT bot Wh Uls nak sane oeetee bv 06a ve ve 9

Fair Labor Standards Act of 1938 as amended,

29 U.S.C. 201, et seg. Section 217..........005: 7

SG SPEER LURG Cha dbarecndecdoredceone 5

Supremacy Clause of the United States

REED: Su:c.0 06 crbitbeant tame dsideebeves oc 6

vi

Page

Section 11 of Third Class Cities’ Firemen’s Civil

Service Act of May 31, 1933, P.L. 1108, 53 P.S.

§39871 (Purdon 1957) ........ 2, 3, 5, 7, 10, 11, 12

Section 4 of Third Class Cities’ Firemen’s Civil

Service Act of May 31, 1933, P.L. 1108,

as amended, 53 P.S. §39869

(Purdon Supp. 1983-1984) ...............0000. 3

1

OPINIONS BELOW

The Opinion of the United States Court of Appeals for

the Third Circuit is reported at Equal Employment Oppor-

tunity Commission v. The City of Altoona, 723 F.2d 4 (3d

Cir. 1983). The Opinion of the United States District

Court for the Western District of Pennsylvania has not

officially been reported.

#

on

ie)

5

‘

2

JURISDICTION

Petitioner City of Altoona seeks review of the judg-

ment of the December 13, 1983 United States Court of

Appeals for the Third Circuit, which was entered on

December 13, 1983. Jurisdiction of the United States

Supreme Court to review this judgment by writ of certio-

rari is conferred by 28 U.S.C. §1254(1).

STATUTES INVOLVED

Section 4(f) of The Age Discrimination in Employ-

ment Act of 1967, as amended, 29 U.S.C. 623(a):

(a) Employer practices:

It shall be unlawful for an employer—

(1) to fail or refuse to hire or to discharge any

individual or otherwise discriminate against any

individual with respect to his compensation,

terms, conditions, or privileges of employment,

because of such individual’s age;

(2) to limit, segregate, or classify his employees in

any way which would deprive or tend to deprive

any individual of employment opportunities or

otherwise adversely affect his status as an

employee, because of such individual’s age; or

(3) to reduce the wage rate of any employee in

order to comply with this chapter.

Section 11 of Third Class Cities’ Firemen’s Civil Ser-

vice Act of May 31, 1933, P.L. 1108, 53 P.S. §39871:

If for reasons of economy, or other reasons, it

shall be deemed necessary by any city to reduce the

number of paid members of any fire department, or

the number of fire alarm operators or fire box inspec-

3

tors in the bureau of electricity, then such city shall

follow the following procedure:

First. If there are any paid firemen, fire alarm

operators or fire box inspectors eligible for retirement

under the terms of any pension fund, then such reduc-

tion in numbers shall be made by retirement on pen-

sion of all the oldest in age and service.

Second. If the number of paid firemen, fire alarm

operators and fire box inspectors eligible for retire-

ment under the pension fund of said city, if any, is

insufficient to effect the reduction in number of

desired by said city, or if there is no eligible person for

retirement, or if no pension fund exists in said city,

then the reduction shall be effected by suspending the

last man or men, including probationers, that have

been appointed. Such removal shall be accomplished

by suspending in numerical order, commencing with

the last man appointed, all recent appointees until

such reduction shall have been accomplished. When-

ever such fire department or fire alarm operators or

fire box inspectors in the bureau of electricity shall

again be increased in numbers to the strength existing

prior to such reduction of members, or if any vacan-

cies occur, the employees suspended under the terms

of this act shall be reinstated to their former class

before any new appointees are appointed.

Section 4 of Third Class Cities’ Firemen’s Civil Ser-

vice Act of May 31, 1933, P.L. 1108, as amended, 53 P.S.

§39869 (Purdon Supp. 1983-1984):

All applicants for any position in the fire depart-

ment and as fire alarm operators and fire box inspec- “

tors in the bureau of electricity shall undergo a physi- :

cal examination, which shall be conducted under the

:

gal

or

‘ci ig . ™ a a le as ck he

4

supervision of the physician member of the Civil Ser-

vice Commission, or if there be none, then by a physi-

cian appointed by the Civil Service Commission. Said

examiner shall certify that an applicant is free from

any bodily or mental defects, deformity or diseases

that might incapacitate him from the performance of

the duties of the position desired before said applicant

shall be permitted to take further examinations. No

application will be received if the person applying is

less than eighteen years of age or more than thirty-five

years of uge at the date of his application: Provided,

however, that in event any applicant has formerly

served in the fire department or as a fire alarm opera-

tor or fire box inspector in the bureau of electricity of

the city to which he makes application for a period of

more than six months, and no charges of misconduct

or other misfeasance were made against such appli-

cant within a period of two years next preceding the

date of his application, and is a resident of the city,

then such person shall be eligible for reinstatement, in

the discretion of the Civil Service Commission, even

though such applicant, providing his former term of

service so justifies, may be reappointed to the fire

department or as a fire alarm operator or fire box

inspector in the bureau of electricity without examina-

tion, other than a physical examination. If such person

is reinstated, he shall be lowest in rank in the depart-

ment next above the probationers of the department.

STATEMENT OF THE CASE

The last several years have not been the best of times

for the City of Altoona, Pennsylvania (“the City”). The j

former lifevlood of this community—the railroad indus- ;

try—has long been in virtual despair. Caught in a relentless a

us . 7 ie

- ry - - > 7 | ve Lt

es. ~~ At ae — rvs > ee me oe ae ne Re OR OP Pe RR 4

5

wage and inflationary spiral, combined with erosion of its

tax base and diminished resources, it was with consider-

able chagrin, but compelling necessity, that in late 1978 the

City set out to tighten its fiscal belt.

On December 29, 1978, the City, by Resolution 5581

of Council, “for purposes of economy necessitated by lack

of funds and appropriations [and] with regret” effected a

reduction-in-force of its employed firefighters by abolish-

ing eight firefighter employment positions. The eight most

recently employed firefighters through their union counsel

resisted the resolution with commencement of an equity

action in the Court of Common Pleas of Blair County,

Pennsylvania, seeking a prohibitory injunction preventing

their discharge and a mandatory injunction requiring the

City to adhere to the Third Class Cities’ Firemen’s Civil

Service Act, 53 P.S. §39871 (“Civil Service Act”).'

The Civil Service Act provided then, as it does today:

If for reasons of economy, or other reasons, it shall be

deemed necessary by any city to reduce the number of

paid members of any fire department... then such

city shall follow the following procedures: First. If

there are any paid firemen... eligible for retirement

under the terms of any pension fund, then such reduc-

tion in numbers shall be made by retirement on pen-

sion of all the oldest in age and service.

53 P.S. §39871. The City conceded in the Blair County

action the provisions of the Civil Service Act, but advo-

cated that the Civil Service Act was pre-empted by the Age

Discrimination in Employment Act, 29 U.S.C. §621 et seq.

‘None of the putative members of the Equal Employment Opportu-

nity Commission's plaintiff class intervened in this action, as they

clearly might have. Pa.R.C.P. 2326-2330. Cf County of Allegheny v.

ee of Pennsylvania, 7\ Pa. Commw. 32, 453 A.2d 1085

(1983).

(“ADEA”), pursuant to the Supremacy Clause of the

United States Constitution:

The Civil Service Act is indeed specific in its language,

and if no other statutory provisions were involved, the

claim for relief would appear evident. However, the

City argues that the quoted Pennsylvania Statute is

superseded by the Federal Age Discrimination in

Employment Act of 1967....In this connection, the

Court was furnished with a copy of a letter from the

acting administrator of the Employment Standards

Administration of the U.S. Department of Labor

dated April 2, 1975, which advises that the Federal

legislation prohibits employers, including local gov-

ernments, from discriminating against older workers.

Specifically the letter sets forth that it is the Depart-

ment’s opinion that the Pennsylvania statute violates

this Federal legislation. It was also called to the atten-

tion of the Court that the Pennsylvania Human Rela-

tions Act has been interpreted as rendering the cited

Civil Service provision as inoperative because it vio-

lates the Human Relations Act.

Ehredt v. Bettwy, No. 78-3197, Slip. Op. at 3-4 (Blair

County C.P., Dec. 29, 1978; Appendix 16a-17a). Recogniz-

ing that the City was confronted with “conflicting legisla-

tion relative to termination of employment” (Slip Op. 4,

Appendix 17a), the Court denied the furloughed

firefighters’ request for a preliminary injunction but

reserved its final decision pending a subsequent hearing.

The eight firefighters with the least seniority were dis-

charged by the City in order to effectuate the necessary

economy measures.

Three months later the Court of Common Pleas of

Blair County, by Order dated March 16, 1979, held that

- wr 3

7

the provisions of the ADEA did not supplant the

mandatory provisions of the Civil Service Act. It ordered

reinstatement of the eight firefighters with full back pay

and benefits. (Appendix 19a-21a.)

The Blair County Court of Common Pleas Order of

March 16, 1979, although imposing a severe financial bur-

den upon the City and, in the process, frustrating its efforts

at economy, was solidly based on very recent mandatory

Pennsylvania appellate court authorities. (See discussion,

infra, at p. 10). The City therefore submitted to the decree,

reinstating and making backpay awards to the eight

firefighters. By March 21, 1979 Resolution 99 of Council

the necessary economy measures were effected by involun-

tarily retiring firefighters in punctilious accordance with

the March 16, 1979 Order, Section 244.32 of the City of

Altoona - Local 299 Firefighters Union Collective Bargain-

ing Agreement, and the Civil Service Act.

Two years later, on March 18, 1981, the Equal

Employment Opportunity Commission commenced this

action on behalf of the putative class of involuntarily

retired firefighters.2 The Pennsylvania Human Relations

Commission also commenced an administrative proceed-

ing against the City, alleging that the City had discrimi-

nated on the basis of age in retiring firefighters in accor-

dance with the Civil Service Act. This administrative

proceeding was abated in accordance with the §14(a) of

ADEA, 29 U.S.C. §633(a).

?The jurisdictional statement contained in {1 of the Equal Employ-

ment Opportunity Commission’s Complaint was: “Jurisdiction of this

Court is invoked pursuant to 28 U.S.C. Section 451, 1337, 1343 and

1345. This is an action authorized and instituted pursuant to Section

7(b). 29 U.S.C. 626(b), of the Age Discrimination in Employment Act of

1967. as amended, 29 U.S.C. 621, et seq. (hereinafter referred to as the

“ADEA”), which incorporates by reference Section 16(c) and 17, 29

U.S.C. 216(c) and 217 of the Fair Labor Standards Act of 1938, as

amended, 29 U.S.C. 201. et seq.”

On May 27, 1982, the United States District Court for

the Western District of Pennsylvania issued an order

granting the Equal Employment Opportunity Commis-

sion’s motion to add the Commonwealth of Pennsylvania

as a party-defendant. Based on interrogatory answers and

supporting affidavits, both the Equal Employment Oppor-

tunity Commission and the City moved for summary judg-

ment.? The September 28, 1982 judgment order of Senior

District Judge Dumbauld granted the City’s Motion for

Summary Judgment. (Appendix | la-1 3a).

Briefing and argument of the Equal Employment

Opportunity Commission’s appeal to the United States

Court of Appeals for the Third Circuit was stayed pending

this Court’s resolution, in Equal Employment Opportunity

Commission v. Wyoming, __— U.S. ——, 103 S.Ct. 1054

(1983), of the constitutionality of the ADEA as applied to

the States. Ultimately the United States Court of Appeals

reversed the District Court’s decision and remanded with

instructions to enter judgment in favor of the Equal

Employment Opportunity Commission, including rein-

statement of the firefighters with full backpay.

ARGUMENT

The Civil Service Act was signed into law by Pennsyl-

vania Governor Pinchot during the Great Depression.

Hardly a modest sense of history is required to appreciate

that the paramount concern of the Pennsylvania General

3The Attorney General of the Commonwealth of Pennsylvania, the

highest legal official of the Commonwealth, joined in the City’s motion.

This position of the Commonwealth of Pennsylvania was, of course,

diametrically different from the position of the Pennsylvania Human

Relations Commission in its previously abated administrative proceed-

confronted the City in its attempt to conform its employment practices

to applicable laws.

a

a

a

‘y

Assembly was that no employee—young or oki—should

avoidably be furloughed without some source of income.

The Civil Service Act was, and is, humanitarian in both

purpose and impact; neither state nor federal courts have

been oblivious to these underlying salutary legislative poli-

cies:

Finally, it appears to us that the effect of Section 11 of

the Act is to insure that as few firemen as necessary are

left without a source of income where there is a reduc-

tion in force rather than to discriminate against the

aged.

Schultz v. Piro, 40 Pa. Commw. 395, 399, 397 A.2d 484,

485-6 (1979). Accord, Zinger y. Blanchette, 549 F.2d 901,

905 (3rd Cir. 1977) (pre-1978 ADEA amendments case):

There is, however, a clear, measurable difference

between outright discharge and retirement, a distinc-

tion that cannot be overlooked in analyzing the Act.

While discharge without compensation is obviously

undesirable, retirement on an adequate pension is gen-

erally regarded with favor. (Footnote omitted.)

Thus, even in March of 1979, the City was justified in

relying upon these precedents as embodied in the March

16, 1979 Order of the Blair County Court of Common

Pleas. Cf, ADEA, 29 U.S.C. §626(e) (reliance upon admin-

istrative regulation or interpretation); Civil Rights Act of

1964, §713(b), 42 U.S.C. §2000e-12 (non-liability for reli-

ance upon written EEOC interpretation or opinion). Only

a perverse legal system would protect citizens from claims

when cloaked with the shroud of ex parte fiat of adminis-

trative bureaucrats, yet leave them defenseless and

exposed to substantial liability and obloquy for having

adhered to the most fundamental of our common law

precepts: stare decisis.

Vy Oe ee

10

It is appropriate to emphasize that more than five

years ago, the City advocated in the Blair County state

court the precise position presently advanced by the Equal

Employment Opportunity Commission—that is, that the

ADEA pre-empted and superseded the Civil Service Act.

However, the City had no more success with that position

in the state court system than the Equal Employment

Opportunity Commission initially had in the district court.

After having deferred to the ADEA as the supreme law of

the land and having refused to follow the Civil Service Act

in furloughing its eight most junior firefighters, the City

was ordered to reinstate each with three months’ full

backpay and other employment benefits. Moreover, the

City was also confronted with mandatory appellate prece-

dents from two separate state judicial panels decided

within weeks of the Blair County state court injunction

order upholding the Pennsylvania Civil Service Act against

ADEA supremacy attacks. City of McKeesport v. Interna-

tional Association of Firefighters, 41 Pa. Commw. 133, 399

A.2d 798 (1979) (decided March 7, 1979); Schultz v. Piro,

40 Pa. Commw. 395, 397 A.2d 484 (1979) (decided Febru-

ary 12, 1979).

In these circumstances, pursuing an appeal as the

Court of Appeals suggested, 723 F.2d at 7, (Appendix 10a),

would surely have been bootless; and, of course, appealing

would have done nothing toward solving the financial exi-

gencies of the City. Nor would commencement of a federal

declaratory judgment action as suggested by the EEOC iu

the Court of Appeals have guaranteed a different result. An

appeal to the Third Circuit Court of Appeals was neces-

sary, after all, because the federal District Court, in dis-

agreeing with the EEOC, held that the Civil Service Act did

not contravene the ADEA. No authority exists in support

of the proposition that federal litigation is preferred over

1]

state court adjudications, or that appeals must vainly be

exhausted to the bitter end, despite certain financial detri-

ment and dislocations to the provision of municipal pro-

tective services.

All of this merely underscores that the City’s chal-

lenged employment decisions, if not considered to have

been based on non-age factors, at a minimum were predi-

cated upon the following good faith grounds: financial and

economic exigencies; the Civil Service Act; the March 16,

1979 state court injunction order; the collective Bargaining

agreement*; and recent mandatory appellate precedents.

Indeed, it may fairly be said that the City’s employment

decision was neither volitional, nor even predicated so

much on the Civil Service Act, as it was upon the compul-

sion of the Blair County state court injunction. It is this

very lack of volition which distinguished this action from

cases such as Equal Employment Opportunity Commission

v. County of Allegheny, 705 F.2d 679 (3rd Cir. 1983). That

and similar cases are authority only for the proposition

that an employer’s volitional selection between ostensibly

inconsistent federal and state legislation “cannot justify

employment discrimination”. Jd., 705 F.2d at 682.

But that case clearly is not this case. The City did not

blithely rely upon the Civil Service Act in derogation of the

ADEA. In fact, it did precisely the opposite. In doing so,

the City was not even afforded a Hobson’s choice: it had

no choice. It was, in essence, directed—if it was to retain its

fiscal integrity—to retire the putative plaintiff class mem-

bers. The state court injunction order, and not any age-

based criteria, was the basis of the City’s challenged

‘Failure of the City to abide by the provisions of its collective

bargaining agreement with the firefighters additionally exposed the City

to liability for breach of that agreement. Bowen v. United States Postage

Service, US. 103 S.Ct. 588 (1983).

12

employment decision. For these distinctive reasons, Equal

Employment Opportunity Commission v. County of Alle-

gheny, supra, and Kober v. Westinghouse Electric Corpora-

tion, 480 F.2d 240 (3rd Cir. 1973), are inapposite.

Whether the humanitarian policies of the Pennsylva-

nia Civil Service Act or the policies underlying the ADEA

are to be afforded precedence has been, and is, of no insti-

tutional significance to the City. The City has always com-

plied with, and will continue to comply with, all legislation

applicable to its employment decisions—whether originat-

ing in the United States Congress or the Pennsylvania

General Assembly. Even the limited record in this action

cogently demonstrates the City’s valiant efforts to abide by

the conflicting state and federal legislation in connection

with the employment decisions from which this action

arose. It would indeed be a keenly cruel irony if in these

circumstances the City was branded a lawbreaker and—in

a sort of civil double jeopardy—fastened with liability for

having abided by the lawful injunction of a state court of

competent jurisdiction.*

This Court recognized in Albemarle Paper Co. v.

Moody, 422 U.S. 405, 415, 95 S.Ct. 2362, 2370 (1975) that

“backpay is not an automatic or mandatory remedy;...”

Rather any such liability is only to be assessed in an equi-

tably sensitive fashioning of relief, which would further the

dual objectives of employers’ compliance with the law and

making whole injured discriminatees. It is manifest even

from the abbreviated record supporting this Petition that

the City requires no threat of retroactive liability to insure

‘The City had no alternative but to obey the state court injunction.

Refusal to obey even an improperly issued injunction is punishable as

contempt. Maness v. Meyers, 419 U.S. 449, 459, 95 S.Ct. 584, 591

(1975); United States v. United Mine Workers, 330 U.S. 258, 293, 67

S.Ct. 677, 696 (1947).

13

its compliance with the ADEA, for it sought more than five

years ago to effect its reduction-in-force in strict accor-

dance with federal law. Only the state court injunction

order and two separate, independently-reasoned state

appellate court precedents prevented its compliance.

Assessing backpay liability against the City in these cir-

cumstances would not be promotive of this principal

underlying purpose of insuring compliance with the

ADEA, and in no manner could be considered to further

the statutory objective of eliminating age discrimination.

Moreover, imposition of retroactive liability would visit

untimely injury upon innocent parties—the City’s taxpay-

ers. City of Los Angeles Dept. of Water and Power v. Man-

hart, 435 U.S. 702, 722-23, 98 S.Ct. 1370, 1382-83 (1978):

Retroactive liability could be devastating for a pen-

sion fund. The harm would fall in large part upon

innocent third parties. . . .

Without qualifying the force of the Albemarle pre-

sumption in favor of retroactive relief, we conclude

that it was error to grant such relief in this case. [Foot-

notes omitted.]

Surely there is something terribly wrong with a juris-

prudential system gone amok in reproaching the City as a

scofflaw and punishing its tax-paying citizens for the City’s

indubitable good faith obeyance of the state court injunc-

tion order and corresponding staie appellate court prece-

dents. But this is exactly what the Court of Appeals deci-

sion has wrought. And it is precisely this sort of disruptive

intrusion into state’s sovereign actions against which the

constitution sought to guard in imposing “limits upon the

power of Congress to override state sovereignty...” The

National League of Cities v. Usery, 426 U.S. 833, 842, 96

S.Ct. 2465, 2470 (1976). If we are “to ensure that the

unique benefits of a federal system in which the States

f

14

enjoy a ‘separate and independent existence,’... not be

lost through undue federal interference in certain core state

functions,” Equal Employment Opportunity Commission

v. Wyoming, _—._ U.S. — —_, — —, 103 S.Ct. 1054, 1060

(1983), review by writ of certiorari to the United States

Court of Appeals for the Third Circuit is essential.

_ Greater than one-half of the states have retirement

laws which ostensibly are violative of the ADEA. Equal

Employment Opportunity Commission v. Wyoming, ——

U.S. at __, 103. §.Ct. at 1069 (Burger, C.J., dissenting).

The issue of scrupulous good faith reliance upon such leg-

islation—and because litigation relating to this type of liti-

gation frequently occurs in state courts, the issue of justifi-

able reliance upon respectable, considered state court

adjudications—poses issues of increasingly significant

institutional importance beyond the interests of the liti-

gants in this action. Settlement of these issues of potential

backpay liability which were expressly left open in

Albemurle Paper Co. v. Moody, 422 U.S. 405, 415, 95 S.Ct.

2362, 2370 (1975), and Equal Employment Opportunity

Commission v. Wyoming, __— U.S. ——, —— 103 S.Ct.

1054, 1060 (1983), would simultaneously promote the

societal interests of clarifying employers’ obligations and

alleviating dissonance between federal and state legislative

and judicial systems.

A decade ago this Court “granted certiorari because of

an evident Circuit conflict as to the standards governing

awards of backpay....” Albemarle Paper Company v.

Moody, supra 422 U.S. at 413, 95 S.Ct. at 2369 (footnotes

omitted). Yet conflict still is extant among the circuits on

the question of assessing backpay liability for an

employer’s justifiable good faith reliance upon state

employment legislation. Compare, e.g., Equal Employ-

15

ment Opportunity Commission v. City of Altoona, 723 F.2d

4 (3d Cir. 1983), with LeBeau v. Libbey-Owens-Ford Com-

pany, __—. F.2d ____ (7th Cir. 1984), 33 FEP Cases 1700

(decided February 3, 1984) (reliance upon state protective

legislation constitutes “special circumstances justifying

denial of backpay award’’). Granting the City’s Petition

will furnish an opportunity to resolve this important issue

which confronts many state and local government employ-

ers.

—-

16

CONCLUSION

If the City of Altoona violated the Age Discrimination

in Employment Act, it did so only under compulsion of a

state court injunction order which precluded it from ignor-

ing the applicable state civil service legislation. Not until

approximately five years later was the City’s employment

decision first held by a federal court to be violative of the.

Age Discrimination in Employment Act. Penalizing the

City for what at worst might be characterized as the mis-

taken decisions of six different state trial and appellate

judges would be inequitable, would not further the legisla-

tive purposes of the Age Discrimination in Employment

Act, and would cause discordant tension between the fed-

eral and state court systems. The Petition for Writ of Certi-

orari to the United States Court of Appeals for the Third

Circuit should be granted.

Respectfully submitted,

JAMES A. MOLLICA, JR.

MEYER, DARRAGH, BUCKLER,

BEBENEK & ECK

2500 Grant Building

Pittsburgh, PA 15219

(412) 261-6600

Attorneys for Petitioner

City of Altoona, Pennsylvania.

APPENDIX

ay re) estes

cei “a

34

Lee 4

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 82-5805

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

VS.

CITY OF ALTOONA, PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA

United States Equal Employment

Opportuntiy Commission,

Appellant

(D. C. Civil No. 81-418)

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE WESTERN

DISTRICT OF PENNSYLVANIA—Pittsburgh

Present: GipBons, GARTH and HIGGINBOTHAM,

Circuit Judges

JUDGMENT

This cause came on to be heard on the record from the

United States District Court for the Western District of

Pennsylvania—Pittsburgh and was argued by counsel

October 24, 1983.

On consideration whereof, it is now here ordered and

adjudged by this Court that the judgment of the said Dis-

trict Court, entered October 1, 1982, as made final by its

order entered October 19, 1982, be, and the same is hereby

reversed and the cause remanded for the entry of an appro-

priate judgment, in EEOC’s favor, which on this record

should include reinstatement and back pay, subject to mit-

igation, for those pension eligible firefighters who were

2a

involuntarily retired pursuant to section II of the Pennsyl-

vania Act. Costs taxed against appellees.

December 13, 1983

ATTEST:

/s/ SALLY Mrvos

Certified as a true copy and

issued in lieu of a formal man-

date on January 4, 1984.

Test:

/s/ M. ELIZABETH FERGUSON

Chief Deputy Clerk, United

States Court of Appeals for the

Third Circuit.

3a

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 82-5805

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

v.

CITY OF ALTOONA, PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA

United States Equal Employment

Opportunity Commission,

Appellant

(D.C. Civil No. 81-418)

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE

WESTERN DISTRICT OF PENNSYLVANIA

Argued: October 24, 1983

Before: GIBBONS, GARTH

and HIGGINBOTHAM, Circuit Judges

(Opinion Filed: December 13, 1983)

DAVID L. SLATE

General Counsel

PHILIP B. SKLOVER

Associate General Counsel

VELLA M. FINK “4

4a

DIANNA B. JOHNSTON (Argued)

Attorney

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

2401 E Street, N.W.

Washington, D.C. 20506

Attorneys for Appellant,

Equal Employment Opportunity Commission

ALTON P. ARNOLD, JR.

Deputy Attorney General

Office of Attorney General

1500 Allegheny Building

Pittsburgh, PA 15219

Attorney for Commonwealth of Pennsylvania

JAMES A. MOLLICA, JR., ESQ.

(Argued)

MEYER, DARRAGH, BUCKLER,

BEBENEK & ECK

2500 Grant Building

Pittsburgh, PA 15219

Attorneys for Appellee,

City of Altoona

OPINION OF THE COURT

GIBBONS, Circuit Judge:

The Equal Employment Opportunity Commission

(EEOC) appeals from a summary judgment in favor of the

City of Altoona and the Commonwealth of Pennsylvania,

Sa

in its complaint for injunctive relief prohibiting the City

from violating the Age Discrimination and Employment

Act of 1967 (“ADEA”), as amended, 29 U.S.C. §§ 621-634

(1976 & Supp. V 1981).! The complaint also seeks rein-

statement and back pay for five former members of the

City Fire Department. The district court granted summary

judgment, first because the Age Discrimination Act could

not, by virtue of the tenth amendment, apply to the City,

and second, because the firemen in question were dis-

charged for a reason other than age. We reverse and

remand for the entry of an appropriate injunction and

back pay award.

in 1978 the City, experiencing budgetary problems,

decided to reduce the size of the Fire Department by eight

persons. It selected for termination the eight most recently

hired firefighters. Those eight responded by an action in

the Court of Common Pleas of Blair County seeking

injunctive relief. They contended that the City’s action

violated Section |! of the Third Class Cities Firemen’s

Civil Service Act, Pa. Stat. Ann. tit. 53, § 39871 (Purdon

1957), which provides:

If for reasons of economy, or other reasons, it shall be

deemed necessary by any city to reduce the number of

paid members of any fire department then such city

shall follow the following procedure:

First. If there are any paid firemen... eligible for

retirement under the terms of any pension fund, then

such reduction in numbers shall be made by retire-

ment on pension of all the oldest in age and service.

'The Commonwealth of Pennsylvania was joined as a defendant

when the City pleaded that the actions of which complained were taken

pursuant to § |! of the Third Class Cities Firemen’s Civil Service Act of

May 31. 1933, P.L. 1108, Pa. Stat. Ann. tit. 53, § 39871 (Purdon 1957).

6a

The City had previously established a pension plan permit-

ting voluntary retirement at age fifty after at least twenty

years of service. In response to the common pleas com-

plaint the City pleaded that the ADEA prohibits “dis-

charge [of] any individual . . . because of such individual’s

age.” 29 U.S.C. § 623(aX(1\(1976). In support of that con-

tention the City furnished the Common Pleas Court with a

letter from the acting administrator of the Employment

Standards Division of the United States Labor Depart-

ment advising that in the Department’s view section 11 of

the Pennsylvania statute was preempted by the ADEA. No

effort was made to join as parties to the Common Pleas

Court action members of the Fire Department who were

eligible for pensions.

On March 16, 1979 the Court of Common Pleas

entered a final judgment holding that the discharge of the

eight most recent hires violated section 11 of the Pennsyl-

vania act, and ordering their reinstatement with back pay.

Although in denying a preliminary injunction the Com-

mon Pleas Court discussed ADEA, the final judgment did

not mention it. The City took no appeal. Instead, on

March 21, 1979 the City Council resolved to reinstate the

discharged recent hires, with back pay, and to discharge

seven others in accordance with section 11. Of the seven,

two were 57 years of age. Those two were recalled within

four days. Five others, the oldest and most senior, ranging

in age between 59 and 61 and in service between 26 and 37

years, were not recalled.

Some time after their forced retirement four of the five

were invited to apply for reinstatement on January 1,

1980.? The reinstatement offer was conditioned, however,

?The fifth died in September 1979.

7a

on successfully passing a physical examination and a stress

test. Hai they not been retired they would not have been

required to take either test. One of the four failed the

physical examination. The other three refused to submit to

the examination.

A charge was filed with EEOC, and its conciliation

efforts were unsuccessful. On March 18, 1981 EEOC com-

menced the instant action. All parties, conceding that there

are not disputed issues of material fact, moved for sum-

mary judgment.

Il.

The first ground relied upon by trial court in granting

summary judgment for the City need not long detain us.

Relying on National League of Cities v. Usery, 426 U.S.

833 (1976), the court held that the tenth amendment pro-

hibited Congress from applying the ADEA to municipali-

ties. That decision was made, however, without the benefit

of the Supreme Court’s subsequent opinion in EEOC y.

Wyoming, US. , 103 S.Ct. 1054 (1983),

holding expressly that application of the ADEA to state

and local government employers does not violate that

amendment. National League of Cities v. Usery, supra.

appears to have spent whatever energy for growth it might

have had.

Il.

The second ground relied upon by the trial court in

denying relief is that 29 U.S.C. § 623(aX 11976) was not

violated, because the layoffs of the pension eligibles was

not because of age, but because of pension eligibility. In

support of that construction of the ADEA the court relied

upon McKeesport v. International Ass'n of Firefighters, 41

Pa. Commw. 133, 399 A.2d 798 (1979).

.

a

x " Sy , 4 ris

eis es Base a ee Pate geet ee cil

8a

An EEOC v. County of Allegheny, 705 F.2d 679 (3d

Cir. 1983), this court rejected the contention that a Penn-

sylvania statute imposing a hiring ceiling of 35 years was a

defense to an ADEA charge. That precedent controls. The

undisputed facts are that normal retirement age for City

firefighters under the City’s ordinance is 65, and that the

pension eligibles were singled out for involuntary retire-

ment pursuant to section 11 solely because they were the

oldest, in years and in service, in the Department. There is .

no way in which what section 11 requires can be termed a

“differentiation [] based on reasonable factors other than

age.” 29 U.S.C. § 623(f)(1) (1976 & Supp. V 1981). Even

among pension eligibles, layoffs are on the basis of age.

Moreover, seniority is in section 11 inexorably linked with

age, and cannot be viewed as a separate factor. See

Laugesen v. Anaconda Co., 510 F.2d 307, 313 (6th Cir.

1975) (discharge based on longest service violates ADEA);

cf, Geller v. Markham, 635 F.2d 1027, 1032-33 (2d Cir.

1980), cert. denied, 451 U.S. 945 (1981) (refusal to hire

persons with more than five years experience inevitably

excludes older teachers). The construction of the ADEA in

McKeesport v. International Ass'n of Firefighters, supra, is

simply wrong. How wrong is disclosed in the Senate

Report on the Age Discrimination in Employment Act

Amendments of 1978, Pub. L. No. 95-256, 92 Stat. 189:

For capable older workers the retirement decision

should be an individual option. Maximum freedom of

choice should be given to employees in deciding when

to retire, provided they are still physically and psycho-

logically able to perform their jobs in a satisfactory

manner.

S. Rep. No. 493, 95th Cong., 2d Sess. 3, reprinted in 1978

U.S. Code Cong. & Ad. News 504, 506. The 1978 amend-

ments to ADEA added to section 4(f2) a prohibition of

9a

provisions in an employee benefit plan which “shall

require or permit the involuntary retirement of any indi-

vidual [age 40 to 70] because of the age of such individ-

ual.” 29 U.S.C. § 623(f(2) (Supp. V 1981). “[T}he purpose

of the amendment to section 4(f)(2) is to make absolutely

clear... that the exception [for bona fide seniority systems

or employee benefit plans] does not authorize an employer

to require or permit involuntary retirement of an

employee within the protected age group on account of

age.” H. R. Rep. No. 950, 95th Cong. 2d Sess. 8, reprinted

in 1978 U.S. Code Cong. & Ad. News 528, 529.

The City atternpts to justify the instant involuntary

retirements, which plainly are on the basis of age because

of pension eligibility. It is well settled, however, that mere

eligibility for a pension is not a defense to a prima facie

case of age discrimination. EEOC y. Baltimore and Ohio

R. Co., 632 F.2d 1107, 1111 (4th Cir. 1980), cert. denied,

454 U.S. 825 (1981). The City’s contention that the retire-

ments were based on economic considerations is equally

meritless, for such considerations cannot be used to justify

age discrimination. Smallwood v. United Air Lines, Inc.,

661 F.2d 303, 307 (4th Cir. 1981), cert. denied, 456 U.S.

1007 (1982). Granted that economic considerations

demanded some reduction in force, the plain fact is that

section 11 on its face imposed the burden of that reduction

on older employees in order of their age. This is not per-

mitted by the ADEA, which completely preempts section

11.

IV.

The City makes one additional argument, not

addressed by the trial court. It urges that the ADEA should

not apply in this instance because it acted under compul-

sion of the decree of the Court of Common Pleas. We

10a

reject that argument. Neither EEOC nor the pension eligi-

ble members of the Fire Department were parties to the

Common Pleas action, and that court did not purport to

adjudicate their rights. It is true that the court sub silencio

rejected the City’s tendered defense, under the ADEA, to

the suit by the last hires. But the City did not claim to be a

class representative for other employees who might be laid

off if the late hires were reinstated. Moreover the City

could have, but chose not to pursue appellate remedies

with respect to the Common Pleas Court’s rejection of its

ADEA defense. It cannot now succeed in placing on the

shoulders of older employees, protected by the federal law,

the burden of the consequences of the City Council deci-

sion to comply with the state court decree rather than

appeal.

V.

The judgment appealed from will be reversed, and the

case remanded for the entry of an appropriate judgment, in

EEOC’s favor, which on this record should include rein-

statement and back pay, subject to mitigation, for those

pension eligible firefighters who were involuntarily retired

pursuant to section 11 of the Pennsylvania act.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

lla

IN THE atzies — DISTRICT

FOR THE WESTERN DISTRICT OF

PENNSYLVANIA

EQUAL EMPLOYMENT

OPPORTUNITY

COMMISSION

Plaintiff,

be Civil Action

CITY OF ALTOONA, No. 81-418

PENNSYLVANIA and

the COMMONWEALTH

OF PENNSYLVANIA

Defendants.

JUDGMENT

AND NOW, this 28th day of September, 1982, upon

consideration of cross motions for summary judgment,

and of pleadings and evidence of record, and it appearing

that the eight retired Altoona firemen whom plaintiff pur-

ports to represent were involuntarily retired pursuant to

section 11 of the Act of May 31, 1933 P. L. 1108, 53 P. S.

39871 which provides that “If for reasons of economy .. .it

shall be deemed necessary . . .to reduce the number of paid

members of any fire department” the city shall “follow the

following procedure....If there are any paid fire-

men . . eligible for retirement under the terms of any pen-

sion fund, then such reduction in numbers shall be made

by retirement on pension of all the oldest in age and ser-

vice” the city of Altoona having first attempted to lay off

12a

the eight having least seniority, but having been required

to reinstate them with back pay by order of the Court of

Common Pleas of Blair County dated March i6, 1979; and

the Court being of opinion that said court correctly con-

cluded that said retirement did not violate the federal age

discrimination act [29 U.S.C. 623(a) (1)] which makes it

unlawful “for an employer...to discharge any individ-

ual... .because of such individual's age’, {italics supplied],

that issue having been disposed of by the opinion of our

now colleague Judge Mencer in McKeesport v. Int. Assn. of

Firefighters, 41 Pa. Commonwealth Court 133, 135 (1979)

where he pointed out “Section 11, however, does not

require the layoff of an individual because of age; rather, it

requires individuals to be laid off because of the fact that

they are eligible for pensions, and therefore will not be

without a source of income”; and the Court further being

of opinion, if it were necessary to address the question,

that fire protection is a traditional and essential function of

the State as a State, and therefore constitutionally pro-

tected from federal intrusion by National League of Cities

v. Usery, 426 U.S. 833, 845 (1976); defendant’s contention

that the age discrimination act was enacted under the

enforcement powers granted in Section 5 of the Fourteenth

Amendment being unpersuasive, admittedly unsupported

by the legislative history, and also unsound because there

is nothing in the Amendment possibly relating to age

except the threadbare equal protection clause, which is

inefficacious in that connection as shown by Mass. Bd. of

Retirement v. Murgia, 427 U.S. 307, 314-15 (1976),

It is accordingly ORDERED, ADJUDGED,

DECREED AND FINALLY DETERMINED, that there

13a

/s/ DUMBAULD

UNITED STATES SENIOR DISTRICT JUDGE

Copies to:

United States Attorney

John H. Edmonds, Esq.

EEOC

126 N. 4th St., Suite 200

Philadelphia, Pa. 19106

Meyer Darragh Buckler Bebenek Eck

James Mollica, Esq.

2500 Grant Bldg. (15219)

Alton P. Arnold, Jr.

Deputy Attorney General

Office of Attorney General

1400 Allegheny Bldg. (15219)

14a

IN THE COURT OF COMMON PLEAS

OF BLAIR COUNTY, PENNSYLVANIA

DAVID E. EHREDT, JAY M.

HAINES, JAMES P. HARSH-

BARGER, KENNETH E.

JAMES, GARY E. KELLER,

JOHN R. PATTON, RONALD

B. PARSON, KENNETH E.

STEELE

Plaintiffs,

Vs. IN EQUITY

LEONARD L. BETTWY,

Director of the

Department

of Public Safety,

City of Altoona

AND

THE CITY OF ALTOONA

NO. 3197

Defendants EQUITY

ROBERT B. CAMPBELL PRESIDENT

JUDGE

THOMAS G. PEOPLES, JR.., ATTORNEY

ESQUIRE FOR

PLAINTIFFS

N. JOHN CASANAVE, ESQUIRE ATTORNEY

FOR

DEFENDANTS

15a

MEMORANDUM OPINION AND ORDER

This equity proceeding seeks to restrain the City of

Altoona from terminating the employment of eight City

firemen and initially requests the Court to grant a prelimi-

nary injunction. The matter was presented to the Court on

December 28, 1976, at which time arguments were heard _

by counsel for the respective parties. Because of the admit-

tedly complicated legal question involved, the case was

taken under advisement with the understanding that an

order would be issued on December 29, 1978.

The averments of the complaint and the attached

injunction affidavit establish the following factual situa-

tion, which the Court accepts for purposes of determining

whether a preliminary injunction should issue. On Decem-

ber 27, 1978, Leonard L. Bettwy, a City Councilman and

Director of the Department of Public Safety, notified the

eight plaintiffs, who are the junior members in point of

service in the Fire Department, that their services would

be terminated effective at midnight December 30, 1978.

The notification letters indicated that this action was taken

because of the “extreme financial hardship placed on the

City of Altoona by the recent Arbitration award,” referring

to the binding arbitration decision which fixes wages and

other conditions of employment for City firemen during

the coming year. It is not questioned that Mr. Bettwy was

acting on behalf of the City in issuing these termination

notices. The City has in effect a pension fund for its fire-

men who retire from service and there are now more than

twenty-five firemen employed who are presently eligible

for retirement.

The Third Class Cities Firemen’s Civil Service Act

adopted on May 31, 1933, (Subsection 11, 53 P.S. 39871)

provides as follows:

16a

“If for reasons of economy, or other reasons, it

shall be deemed necessary by any city to reduce the

number of paid members of any fire department, . . .,

then such city shall follow the following procedure:”

“First. If there are any paid firemen, .. .eligible

for retirement under the terms of any pension fund,

then-such-reduction-in-numbers-shall-be-made by

retirement on pension of all the oldest in age and

service.”

‘Second. If the number of paid fire-

men, . . .eligible for retirement under the pension fund

of said city, if any, is insufficient to effect the reduction

in number desired by said city, or if there is no eligible

person for retirement, or if no pension fund exists in

said city, then the reduction shall be effected by sus-

pending the last man or men, including probationers,

that have been appointed...”

It is the contention of plaintiffs that the proposed ter-

mination of employment is in direct violation of the

quoted statute, which is ample basis for the Court to grant

a preliminary injunction prohibiting the City from carry-

ing out an unlawful act. Plaintiffs further argue that they

will suffer great and irreparable harm from termination of

their employment and that subsequent reinstatement if

their position is sustained would not be adequate relief.

The Civil Service Act is indeed specific in its language,

and if no other statutory provisions were involved, the

claim for relief would appear evident. However, the City

argues that the quoted Pennsylvania statute is superseded

by the Federal Age Discrimination in Employment Act of

1967. This Act as amended in 1974 apparently covers Fed-

eral, State, and local government employment and basi-

cally protects individuals from arbitrary age discrimina-

tion where they are at least forty years of age but less than

sixty-five years of age. In this connection, the Court was

17a

furnished a copy of a letter from the acting administrator

of the Employment Standards Administration of the U.S.

Department of Labor dated April 2, 1975, which advises

that the Federal legislation prohibits employers, including

local governments, from discriminating against older

workers. Specifically, the letter sets forth that it is the

Department’s opinion that the Pennsylvania statute vio-

lates this Federal legislation. It was also called to the atten-

tion of the Court that the Pennsylvania Human Relations

Act has been interpreted as rendering the cited Civil Ser-

vice provision as inoperative because it violates the

Human Relations Act. Finally, the City argues that it

would suffer substantial financial hardship if a preliminary

injunction directed it to keep the firemen on the payroll

after December 31, 1978, because of the vacation and

other fringe benefits to which they would be entitled.

After much consideration, the Court has reached the

conclusion that a preliminary injunction should not issue

at this time. Although no judicial decisions were cited, and

the Court has not been able to find any in the brief time

allowed for research, there is no question that the City is

faced with conflicting legislation relative to the termina-

tion of employment. On the one hand is the clear language

of the Pennsylvania statute, while on the other is a threat

of the violation of Federal law which may result in sub-

stantial financial penalties to the City. In these circum-

stances we cannot say that the City has acted arbitrarily

nor that it is in fact violating the law in these discharges.

Finally, if the eventual resolution of this litigation

concludes that the City improperly terminated the employ-

ment of the individuals in question, they would obviously

be entitled to reinstatement with appropriate compensa-

tion for their losses. However, we do not believe it is

appropriate for this Court at the present time to order

ute

loa

these employees continued in City service which might

well have the effect of forcing the City to terminate senior

employees and thus violate a Federal statute or perhaps

even the Human Relations Act of this Commonwealth.

In reaching this decision, we are mindful of the difficult

position both plaintiffs and defendants are placed in but feel

that the matter can best be settled by a full hearing on the

merits rather than by issuing a preliminary injunction.

For the reasons set forth above, the following order is

entered:

ORDER

NOW, this 29th day of December, 1978, the request

for a preliminary injunction by the plaintiffs restraining

the City of Altoona from terminating their employment is

denied and dismissed. The case shall proceed to hearing

upon the filing of an answer by the defendants.

BY THE COURT,

Rosert B. CAMPBELL

P.J.

if |

o Cag Beer Pr. Soe

19a

IN THE COURT OF COMMON PLEAS

OF BLAIR COUNTY, PENNSYLVANIA

DAVID E. EHREDT, JAY M.

HAINES, JAMES P. HARSH-

BARGER, KENNETH E.

JAMES, GARY E. KELLER,

JOHN R. PATTON, RONALD

B. PARSON, KENNETH E.

STEELE

Plaintiffs,

Vs. IN EQUITY

LEONARD L. BETTWY,

Director of the

Department

of Public Safety,

City of Altoona

AND

THE CITY OF ALTOONA

NO. 3197

Defendants EQUITY

ROBERT B. CAMPBELL PRESIDENT

JUDGE

THOMAS G. PEOPLES, JR., ATTORNEY

ESQUIRE FOR

PLAINTIFFS

N. JOHN CASANAVE, ESQUIRE ATTORNEY

FOR

DEFENDANTS

20a

ORDER

NOW, March 16, 1979, after a review of the amended

complaint filed in this matter, which is identical with the

original complaint except for the addition of a Notice to

Plead, and the Answer to the complaint, and after counsel

for the respective parties have stipulated at argument that

the pleadings are complete and contain all factual aver-

ments necessary for a final resolution of this matter, and

have further stipulated that it is their desire that the decree

entered by the Court on this date be treated as a final

decree in order that either party may appeal therefrom, the

Court enters the following Order:

(1)

The termination of the employment of the plaintiffs as

of December 30, 1978 is hereby declared to have been

improper and in violation of the provisions of the Third

Class Cities Firemen’s Civil Service Act of 1933, May 31,

P.L. 1108 Subsection 11 (53 P.S. 39871);

(2)

The defendants are ordered and directed to reinstate

as of March 19, 1979, any and all of the plaintiffs who have

not heretofore been reinstated by the City of Altoona to the

positions which they held as firefighters with the Bureau of

Fire of the City of Altoona immediately prior to the termi-

nation of their employment on December 30, 1978.

(3)

The defendant City of Altoona shall pay to the plain-

tiffs individually such respective amiounts as shall be

required to compensate them for lost wages and employee

fringe benefits as a result of the termination of their

employment effective December 30, 1978. Said restoration

2la

to employment and payment of back compensation shall

be done in such manner as will insure that the respective

plaintiffs shall be in precisely the same position for all

purposes connected with their employment by the City of

Altoona as if said employment had in fact not been termi-

nated as of December 30, 1978. In the event of any dis-

agreement between the pafties as to the amount of com-

pensation or any other benefits to which any of the

plaintiffs may be due, the Court will reserve jurisdiction in

order to meet with counsel and if necessary for a proper

resolution of such matters; and

(4)

This decree is eniered as a final decree with the spe-

cific understanding of the Court and both parties that an

appeal may be filed therefrom.

BY THE COURT,

Rosert B, CAMPBELL

P.J.