[J-3-2015] 

IN THE SUPREME COURT OF PENNSYLVANIA 

EASTERN DISTRICT 

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

PHILADELPHIA FIREFIGHTERS' UNION, 

LOCAL 22, INTERNATIONAL 

ASSOCIATION OF FIREFIGHTERS, AFLCIO BY ITS GUARDIAN AD LITEM 

WILLIAM GAULT, PRESIDENT, TIM 

MCSHEA, VICE PRESIDENT, KELVIN 

FONG, VICE PRESIDENT, AND FIRE 

LIEUTENANT ANDREW THOMAS, 

 Appellants 

 v. 

CITY OF PHILADELPHIA, MAYOR 

MICHAEL A. NUTTER, RICHARD 

NEGRIN, LLOYD AYERS, 

 Appellees 

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No. 16 EAP 2014 

Appeal from the order of the 

Commonwealth Court entered on 

9/18/2013 at No. 869 C.D. 2013 reversing 

the order entered on 5/14/2013 in the 

Court of Common Pleas, Civil Division, 

Philadelphia County at No. 1039 May 

Term 2013 

78 A.3d 16 (Pa.Cmwlth. 2013) 

ARGUED: March 10, 2015 

OPINION 

MR. JUSTICE BAER DECIDED: July 20, 2015 

 The International Association of Firefighters, Local 22, AFL-CIO, and its named 

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

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

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

mandamus for the Union and against the City of Philadelphia, Mayor Michael A. Nutter, 
[J-3-2015] - 2 

Richard Negrin, and Lloyd Ayers (collectively, the City), and required the City to fill 

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

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

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

agree, and hold that the Union has not established a clear legal right to relief or a 

corresponding duty in the City, and that it is therefore not entitled to peremptory 

judgment in mandamus. 

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

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

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

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

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

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

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

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

401(e). 

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

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

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

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

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

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

appropriate eligible list to fill a vacancy, and directs that after a candidate has been 
[J-3-2015] - 3 

rejected twice by an appointing authority in favor of other candidates, that candidate can 

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

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

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

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

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

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

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

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

2.06. 

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

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

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

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

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

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

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

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

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

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

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

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

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

 

1

 An exception to this rule of rejection exists where a non-veteran candidate was 

passed over in favor of a veteran, which does not constitute a rejection. 351 Pa.Code § 

7.7-401(h). 
[J-3-2015] - 4 

Human Resources for the City of Philadelphia (Director) “may publish a List of 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

11.035, 11.11, 11.12, 9.1413. During a six-month probationary period, the 
[J-3-2015] - 5 

Commissioner has the discretion to demote or discharge the candidate from the position 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

2

 By May 13, 2013, a new civil service examination had been given, and the City 

was in the process of creating a new promotional list for the positions of Fire Captain 

and Fire Lieutenant. 

3

 As further background relevant to this current legal dispute, the City and Union 

are parties to a collective bargaining agreement pursuant to Act 111, 43 P.S. § 217.1-

217.10. Prior to the instant litigation, the Union submitted a set of proposals as part of 

its interest arbitration process with the City, specifically requesting that the City be 

required to fill all vacancies within 60 days, or, where a vacancy arose within 60 days of 

(Lcontinued) 
[J-3-2015] - 6 

Dissatisfied with the City’s intended course of conduct in this regard, on May 13, 

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

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

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

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

before the May 2011 list expired. 

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

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

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

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

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

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

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

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

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

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

 

(continuedL) 

the expiration of an active promotional list, before the list expired. The Union’s proposal 

was rejected, and interest arbitration resulted in two awards setting forth the City’s 

management rights, including the right to determine selection and direction of 

personnel. 

4

 Mandamus relief is proper only where the petitioner demonstrates a clear legal 

right in the petitioner; a corresponding duty in the respondent; and the absence of any 

other appropriate or adequate remedy. Equitable Gas Co. v. City of Pittsburgh, 488 

A.2d 270, 272 (Pa. 1985). 
[J-3-2015] - 7 

candidates from the promotional list, and to vindicate the Union’s clear legal right to this 

relief.5 

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

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

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

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

that mandamus relief was inappropriate because the Fire Commissioner has discretion 

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

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

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

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

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

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

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

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

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

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

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

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

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

Commonwealth Court observed that the Civil Service Regulations gave the 

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

 

5

 Upon the trial court’s grant of relief to the Union, the City promoted several Union 

members into the positions of Fire Captain and Fire Lieutenant, and informed them that 

their promotions were subject to the City’s appeal. The promoted Union members took 

the civil service examination for placement on the promotional list, but did not pass. 
[J-3-2015] - 8 

Phila. Civil Serv. Reg. 10.022 (“[e]ligible candidates may be certified and appointed at 

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

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

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

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

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

erred in granting mandamus relief. 

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

issues: Whether the Commonwealth Court’s decision is inconsistent with similar 

decisions of that court involving the Philadelphia Home Rule Charter and Civil Service 

Regulations; and whether the Commonwealth Court disregarded the continued viability 

of the Civil Service public employment system. Philadelphia Firefighters’ Union v. City 

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

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

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

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

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

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

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

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

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

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

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

vacancies to remain unfilled until a new promotional list was established. 
[J-3-2015] - 9 

The Union also attempts to undermine the Commonwealth Court’s holding on 

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

employment premised on favoritism, cronyism, and discrimination by maintaining 

objectivity in employment decisions. Under the Commonwealth Court holding, 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the City was required to rank civil service candidates based on their test results, rather 
[J-3-2015] - 10 

than randomly by a computer, holding that the Charter and Civil Service Regulations 

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

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

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

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

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

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

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

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

Regulations to support this position. 

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

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

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

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

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

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

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

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

other recognized bases is an important incentive for achievement and continued 

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

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

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

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

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

provision is dedicated to the manner of hiring, firing, and promoting, rather than to the 
[J-3-2015] - 11 

decision of whether or when to hire, fire, or promote. See 351 Pa.Code § 7.7-401(a) 

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

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

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

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

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

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

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

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

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

number of reasons regularly exist that preclude immediate expenditure of budgeted 

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

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

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

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

prevent deficits). 

 Addressing the Civil Service Regulations promulgated in accord with the Home 

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

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

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

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

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

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

preference for promotion rather than hiring from outside. 
[J-3-2015] - 12 

 Further, according to the City, neither the regulations nor the Charter require that 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

considered again, or whether that person should remain in the position following the sixmonth probationary period. Phila. Civil Serv. Reg. 11.03, 11.04, 11.05, 14.01. 

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

over promotions the Commissioner chooses to make. For example, no promotion 
[J-3-2015] - 13 

becomes final until the candidate is deemed medically fit, Phila. Civil Serv. Reg. 9.1413, 

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

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

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

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

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

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

entitlement to mandamus relief. 

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

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

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

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

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

Peremptory judgment in mandamus is an extraordinary remedy utilized “to 

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

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

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

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

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

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

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

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

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

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

Shroyer v. Thomas, 81 A.2d 435, 436 (Pa. 1951), and a corresponding duty is shown 
[J-3-2015] - 14 

where the governing law contains directory language, requiring that an act shall be 

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

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

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

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

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

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

Court that while the Commissioner is required to fill vacancies in the manner prescribed 

by the Home Rule Charter and the Civil Service Regulations, neither the Charter nor the 

Regulations speak to the timing of promotions or otherwise create a clear legal right to a 

promotion. 

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

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

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

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

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

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

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

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

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

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

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

City consider other methods of filling a vacancy. 

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

conclusion, providing that promotion is an important incentive for achievement and 
[J-3-2015] - 15 

continued municipal employment. Its emphasis is upon the significance of promotion in 

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

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

City should prioritize promotion and career advancement of municipal employees when 

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

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

sanctioned methods for filling vacancies. 

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

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

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

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

such a requirement upon the City. There is no imperative that the City exhaust a 

promotional list before establishing a new list, or that promotions must occur from a 

particular list before it expires. Rather, the City is required to expire a list after two 

years to provide employees “reasonable opportunity for employment” and to replenish 

lists with “the names of the most competent candidates available for employment.” 351 

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

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

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

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

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

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

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

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

which their names had been improperly removed had expired. The trial court agreed 
[J-3-2015] - 16 

and ordered the City of Pittsburgh to promote them. The Commonwealth Court 

affirmed. 

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

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

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

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

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

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

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

that the relief ordered by the trial court “had the effect of interfering with the decisionmaking authority accorded by statute to the Public Safety Director,” who may have 

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

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

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

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

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

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

inherent in the timing of making promotions. 

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

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

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

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

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

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

the old list, and to conduct a new promotional examination “forthwith.” Id. at 595. On 
[J-3-2015] - 17 

appeal, the Commonwealth Court examined the Home Rule Charter and the Civil 

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

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

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

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

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

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

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

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

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

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

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

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

Because there is no right to be promoted and no requirement that the City make 

promotions as soon as positions become vacant, the Commonwealth Court properly 

concluded that the trial court erred in granting mandamus relief to the Union. The order 

of the Commonwealth Court is affirmed. 

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

opinion. 

Mr. Justice Stevens files a concurring opinion.