source: Caselaw Access Project

author: Justice BAER. Justice STEVENS,

license: Public Domain

text:
    119 A.3d 296
    PHILADELPHIA FIREFIGHTERS’ UNION, LOCAL 22, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, AFL-CIO 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.
    Supreme Court of Pennsylvania.
    Argued March 10, 2015.
    Decided July 20, 2015.

      Joseph T. Cleary, Esq., Cassie R. Ehrenberg, Esq., Regina C. Hertzig, Esq., Cleary, Josem & Trigiani, LLP, Philadelphia, for William Gault, Andrew Thomas, Philadelphia Firefighters’ Union, Local 22, International Assoc, of Firefighters, AFL-CIO, Tim McShea and Kelvin Fong.
    Diana Jane Nobile, Esq., Douglas L. Steele, Esq., Thomas A. Woodley, Esq., Woodley & McGillivary, for International Association of Fire Fighters.
    Elise Michelle Bruhl, Esq., for City of Philadelphia, Michael A. Nutter, Lloyd Ayers and Richard Negrin.
    SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ.
   OPINION

Justice BAER.

The International Association of Firefighters, Local 22, AFL-CIO, and its named officers (collectively, the Union) is the collective bargaining unit representing the City of Philadelphia’s firefighters and paramedics. It appeals from the order of the Commonwealth Court, which reversed the trial court’s grant of peremptory judgment in mandamus for the Union and against the City of Philadelphia, Mayor Michael A. Nutter, Richard Negrin, and Lloyd Ayers (collectively, the City), and required the City to fill vacancies immediately in the positions of Fire Captain and Fire Lieutenant. The Commonwealth Court held that neither the Home Rule Charter, 351 Pa.Code §§ 1.100 et seq., nor the Civil Service Regulations require vacancies to be filled immediately. We agree, and hold that the Union has not established a clear legal right to relief or a corresponding duty in the City, and that it is therefore not entitled to peremptory judgment in mandamus.

Union members are subject to Philadelphia’s Civil Service Regulations, which comprise the procedures for hiring and promotion in the City in accord with the Home Rule Charter. The Home Rule Charter directs that Civil Service Regulations “shall provide for” promotions which “give appropriate consideration to the applicant’s qualifications, record of performance, seniority and conduct.” 351 Pa.Code § 7.7-400. Moreover, “[v]acancies shall be filled by promotion whenever possible, and promotion shall be on a competitive basis except where the Personnel Director with the approval of the Civil Service Commission finds that competition is impracticable.” Id., § 7.7-401(e).

Moreover, the Home Rule Charter requires “the establishment of eligible lists for appointment and promotion,” the ranking of eligible candidates in order of their performance on civil service examinations, and directs that such lists “shall continue in force for at least one year ... until exhausted or replaced by more recently prepared lists but in no case longer than two years.” Id., § 7.7-401(f). The Home Rule Charter further requires the City to certify the two candidates with the highest standing on the appropriate eligible list to fill a vacancy, and directs that after a candidate has been rejected twice by an appointing authority in favor of other candidates, that candidate can no longer be certified. 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 “[comprised 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 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, “[ujnless 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.” Phi-la. 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 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. 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.

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

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. 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, 625 Pa. 348, 91 A.3d 1235 (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.

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, 165 Pa.Cmwlth. 174, 646 A.2d 592 (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, 132 Pa.Cmwlth. 631, 574 A.2d 123 (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 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, 507 Pa. 53, 488 A.2d 270, 272 (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 “[vacancies 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 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(e) (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.

Further, according to the City, neither the regulations nor the Charter require that a particular promotional list be exhausted before a new list is established, or that promotions must occur before an old list expires. Rather, the City posits that the purpose of expiring a promotional list after two years is to provide employees reasonable opportunity for advancement and to replenish the list periodically with the most competent candidates for promotion. See 351 Pa.Code § 7.7-401(f) (Annon.) (“The one year minimum is imposed so that examinees will have a reasonable opportunity for employment. A two year maximum is necessary so that lists shall be replenished periodically with the names of the most competent candidates available for employment.”); Phila. Civil Serv. Reg. 10.071 (“When a more recent list has been established for a class, the Director may determine that a previous non-continuous or periodic list for that class, which is more than one year old, shall be canceled and replaced by the more recently established list, or consolidated....”).

Turning to whether promotions are a ministerial act or duty, the City argues that they are not, and asserts that the Commissioner has discretion about when to fill vacancies. According to the City, the Commissioner has discretion to decide whether to spend appropriated funds, to conserve resources for future use, how to apportion funds in the first instance, how many positions are needed, and how to structure his supervisory and management team. The City further asserts that the Commissioner must exercise his own judgment and opinion as to whether a promotion is proper; whether a particular candidate should be promoted, rejected, rejected twice and not considered again, or whether that person should remain in the position following the six-month probationary period. Phila. Civil Serv. Reg. 11.03, 11.04, 11.05, 14.01.

Additionally, the City asserts that other City officials have independent review over promotions the Commissioner chooses to make. For example, no promotion 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, 539 Pa. 356, 652 A.2d 813, 818-19 (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, 478 Pa. 484, 387 A.2d 425, 430 n. 11 (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, 615 Pa. 87, 41 A.3d 816, 817 (2012). A clear legal right to relief is shown where the right to require performance of the act is clear, Shroyer v. Thomas, 368 Pa. 70, 81 A.2d 435, 436 (1951), and a corresponding duty is shown where the governing law contains directory language, requiring that an act shall be done. Stork v. Sommers, 158 Pa.Cmwlth. 65, 630 A.2d 984, 986-87 (1993). A ministerial act admits of “no discretion in the municipal officer[.]” Lhormer v. Bowen, 410 Pa. 508, 188 A.2d 747, 750 (1963). A want of any other adequate remedy is established where there is no alternative form of relief. Styers v. Wade, 30 Pa.Cmwlth. 38, 372 A.2d 1236, 1238 (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 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 and ordered the City of Pittsburgh to promote them. The Commonwealth Court affirmed.

Before this Court, the City of Pittsburgh argued that promotion was not the proper remedy because it infringed on the Public Safety Director’s discretion and put the officers in a better position than they would have been in if their names had not been struck. Considering the appropriate remedy, we agreed with the City of Pittsburgh that, given the discretion vested in the Public Safety Director, if the two officers’ names had remained on the promotional list, it was not certain they would have been promoted, as the Public Safety Director could have chosen to pass them over. Id. at 817. We held that the relief ordered by the trial court “had the effect of interfering with the decision-making authority accorded by statute to the Public Safety Director,” who may have exercised his discretion not to promote the two officers, and was ordered “without regard to the administrative consequences of such action.” Id. at 818. We directed the City of Pittsburgh to put the officers back on the promotional list, make promotions in accord with established procedures, and ensure that any unsuccessful candidate was given the opportunity to be placed on the next promotional list by sitting for the required examination. Id. at 820. Trosky therefore recognized the managerial discretion inherent in the timing of making promotions.

Moreover, both Commonwealth Court cases relied upon by the Union stand for the unremarkable proposition that the City cannot disregard the civil service regulations. In Walls, the City and a group of civil service applicants agreed to extend a promotional list beyond the two years provided for in the civil service regulations. 646 A.2d at 594. Another group of applicants challenged this decision, arguing that the list expired after two years by operation of law. Id. The trial court agreed, ordering the City to disregard the old list, and to conduct a new promotional examination “forthwith.” Id. at 595. On 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 at 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.

Chief Justice SAYLOR, Justices EAKIN and TODD join the opinion.

Justice STEVENS files a concurring opinion.

Justice STEVENS,

concurring.

I write separately to express my concern that the current procedure for promotion of civil service employees, provided for by the existing language of Philadelphia’s Home Rule Charter and Civil Service Regulations, does not serve to maintain objectivity in the promotion process, but instead enables the very manipulation of the process that the civil service system was intended to prevent. Re-crafting the Home Rule Charter and the Civil Service Regulations to better prevent the potential for such abuse is not the function of this Court, however. Instead, we must apply the terms of those documents, as written.

The Majority Opinion has accomplished this, and I concur in the result reached by the Majority, which affirms the order of the Commonwealth Court reversing the Court of Common Pleas’ grant of mandamus relief to the Philadelphia Firefighters’ Union.

      . 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).

      . 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.

      . 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 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.

      . 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, 507 Pa. 53, 488 A.2d 270, 272 (1985).

      . 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.


author: Justice TODD. Chief Justice SAYLOR, Justice EAKIN,

text:
    119 A.3d 306
    COMMONWEALTH of Pennsylvania, Appellee v. Scott Wayne BLYSTONE, Appellant.
    Supreme Court of Pennsylvania.
    Submitted Oct. 27, 2014.
    Decided July 20, 2015.

      James F. Hibey, Esq., Rebecca Liu, Esq., Michael Wiseman, Esq., Philadelphia, for Scott Wayne Blystone.
    Anthony John Krastek, Esq., PA Office of Attorney General, Gregory Joseph Simatic, Esq., for Commonwealth of Pennsylvania.
    SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ.
   OPINION

Justice TODD.

This matter comes to us upon Appellant’s interlocutory appeal from an order of the Fayette County Court of Common Pleas. In this capital case, the United States District Court for the Western District of Pennsylvania held that Appellant Scott Wayne Blystone was entitled to receive a new sentencing hearing after concluding that his counsel was ineffective for failing to investigate and develop penalty-phase mitigating evidence in the form of institutional records and expert mental-health evidence. The United States Court of Appeals for the Third Circuit affirmed, and Appellant presently awaits a new penalty-phase hearing following the completion of discovery.

Throughout the course of counsel’s current mitigation investigation, Appellant’s mother, Norma Blystone, has consistently refused to divulge certain information regarding Appellant’s childhood—which Appellant deems “critical”—unless she is assured that the information she provides will not be made public. In an attempt to provide Mrs. Blystone with such assurances and to obtain this additional information from her, Appellant filed a motion in the Court of Common Pleas of Fayette County for limited courtroom closure and temporary sealing of transcripts with respect to Mrs. Blystone’s testimony, any expert testimony addressing the information Mrs. Blystone reveals, and any closing arguments referencing such testimony. The trial court denied the motion, and Appellant has filed an interlocutory appeal from that order pursuant to Pa.R.A.P. 313. For the reasons that follow, we conclude that our Court lacks jurisdiction to review the trial court’s interlocutory order denying Appellant’s closure motion, and, accordingly, this appeal must be quashed.

I. Background

The facts underlying Appellant’s conviction are set forth more fully in this Court’s opinion resolving Appellant’s direct appeal, see Commonwealth v. Blystone (“Blystone I”), 519 Pa. 450, 549 A.2d 81 (1988); however, a brief recitation of those facts is necessary to provide context to the instant matter. On September 9, 1983, at approximately 12:00 a.m., Appellant was driving with his girlfriend and two others, when he picked up a hitchhiker and later robbed and murdered him, shooting him in the back of the head. Appellant was charged with first-degree murder, robbery, conspiracy to commit first-degree murder, and conspiracy to commit robbery. Following a jury trial in the Fayette County Court of Common Pleas, he was found guilty of each of the aforementioned crimes.

During Appellant’s penalty-phase hearing, Appellant’s trial counsel elected not to offer any mitigating evidence. Ultimately, the jury found one aggravating circumstance—that Appellant killed the victim in the perpetration of a felony— and it sentenced Appellant to death pursuant to 42 Pa.C.S. § 9711(c)(l)(iv) (“The verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance specified in subsection (d) and no mitigating circumstance.”). Appellant also received a consecutive sentence of 10 to 20 years imprisonment for his robbery conviction. Appellant appealed his judgment of sentence, and, on October 17, 1988, this Court affirmed. Blystone I.

Thereafter, on October 12, 1995, Appellant, represented by new counsel, filed a petition under the Post Conviction Relief Act (“PCRA”), raising various claims of ineffectiveness of trial counsel, trial court error, and constitutional violations. Relevant to the instant matter, Appellant asserted, inter alia, that his counsel was ineffective for failing to offer mitigating evidence during the penalty phase of his capital trial and, more specifically, for failing to interview his family about mitigating evidence concerning his childhood. During the ensuing PCRA hearing, Appellant offered a variety of mitigation evidence that he claimed was available to counsel at the time of trial, including testimony from, inter alia, his parents, Mr. and Mrs. Blystone; Dr. Patricia Fleming, a clinical psychologist and neuropsychologist; and Dr. Alec Whyte, a psychiatrist, as well as affidavits from Mr. and Mrs. Blystone; Appellant’s sisters, Cynthia Gaye Guthrie and Julie Ann Dice; and others.

Appellant’s father, Norman Blystone, testified that Appellant frequently acted out and that he used corporal punishment to discipline Appellant approximately once or twice a week beginning when Appellant was seven or eight years old until his early teenage years. N.T. Hearing, 11/3/1995, at 100-03. Mr. Blystone described that he used various methods of disciplining Appellant, including whipping him with a belt, slapping him with his hands, and kicking him. Id. at 104. Additionally, Mr. Blystone stated that Appellant’s prior counsel did not discuss mitigating circumstances with him prior to Appellant’s trial and did not ask him to aid with obtaining his son’s school, military, or medical records. Id. at 94. Mr. Blystone’s affidavit contained similar information, stating that he “was the disciplinarian in the family,” and that he punished Appellant more than his other children. Affidavit of Norman Blystone, 10/5/1995, at 3.

Mrs. Blystone stipulated that she would testify to the same information as Mr. Blystone. N.T. Hearing, 11/3/1995, at 126. Additionally, with respect to Mr. Blystone’s use of corporal punishment, Mrs. Blystone testified that there were times that she tried to stop Mr. Blystone from using such punishment on Appellant and that there were times that she felt that Mr. Blystone’s actions in disciplining Appellant were excessive. Id. at 127. Mrs. Blystone explained that, when she felt that her husband was being excessive, she would try to talk to him about it, which sometimes developed into an argument; however, she claimed that, “most of the time,” she was successful in getting her husband to stop. Id. at 128. Additionally, Mrs. Blystone stated in her affidavit that her husband was the family’s disciplinarian, that he was “very stern” with Appellant, and that he punished Appellant more than the other children, and did so with his belt or his hand. Affidavit of Norma Blystone, 10/5/1995, at 2.

The affidavits of Appellant’s sisters similarly revealed that Mr. Blystone set the rules in the house, disciplined the children, and was “very strict.” Affidavit of Julie Ann Dice, 10/5/1995, at 1. The affidavits further described that Appellant “got the most whippings,” “couldn’t learn from being punished,” and “couldn’t stay out of Dad’s way.” Affidavit of Cynthia Gaye Guthrie, 10/5/1995, at 2.

Dr. Fleming testified that she diagnosed Appellant with organic brain damage, bipolar mood disorder, polysubstance abuse, and borderline personality disorder, N.T. Hearing, 11/14/1996, at 46, 48, 63, 54, based upon her clinical interviews and psychological testing of Appellant, Appellant’s life history, and her review of Appellant’s Department of Corrections, hospital, and navy records. Id. at 19—21, 27. Specifically, Dr. Fleming explained that Appellant developed bipolar personality disorder, in part, because he was “truly abused physically over a long period of time,” the abuse was “inconsistent, it was irrational, and not based on fact,” and, thus, “[Appellant] did not know how to deal with the world” and “withdrew.” Id. at 49.

Dr. Whyte testified that, based upon his interview with Appellant, his review of affidavits from Appellant’s mother, father, and other family members, and his review of Appellant’s correctional institution records, navy records, and hospital records, id. at 69-70, he diagnosed Appellant with borderline personality disorder, bipolar mood disorder, and organic personality disorder. Id. at 74-76.

Additionally, Appellant introduced various institutional records, including a Mayview State Hospital competency evaluation report diagnosing Appellant with antisocial personality disorder, Department of Correction Records from Appellant’s previous incarceration in Maryland documenting Appellant’s good behavior in prison and various health issues, and records from the Navy recommending Appellant be discharged due to the severity of his personality disorder.

On January 4, 1996, the PORA court denied Appellant’s petition, specifically finding, with respect to Appellant’s claim that trial counsel was ineffective in failing to prepare mitigation evidence, that trial counsel interviewed Appellant and his family regarding potential mitigating evidence and discrediting testimony from Appellant’s family to the contrary. Appellant appealed, and this Court affirmed, concluding, inter alia, that Appellant’s counsel was not ineffective for failing to present mitigating evidence because Appellant refused to allow mitigating evidence to be presented on his behalf. Com monwealth v. Blystone (“Blystone II"), 555 Pa. 565, 725 A.2d 1197, 1205-06 (1999).

Appellant subsequently filed a petition for writ of habeas corpus, and supplement thereto, with the United States District Court for the Western District of Pennsylvania, again alleging that his trial counsel was ineffective for failing to investigate and introduce available mitigating evidence. Relying upon the PCRA court’s credibility determinations, the district court rejected Appellant’s contention that his trial counsel was ineffective for failing to investigate and develop lay-witness mitigation testimony; however, the district court found that Appellant’s trial counsel was indeed ineffective for failing “to investigate and present expert mental health mitigation evidence and mitigation evidence of his good conduct in prison and lack of future dangerousness if sentenced to life in prison.” Blystone v. Horn, 2005 U.S. Dist. LEXIS 40922, *116 (W.D.Pa. filed Mar. 31, 2005). Thus, the district court granted the writ of habeas corpus with respect to Appellant’s death sentence on March 31, 2005, and found that he was entitled to a new sentencing hearing. The Third Circuit affirmed on December 22, 2011. Blystone v. Horn, 664 F.3d 397 (3d Cir.2011).

Thereafter, the sentencing court appointed Appellant new counsel for the penalty-phase hearing. In preparation for the hearing, Appellant’s counsel began conducting discovery and investigating potential mitigation witnesses, including Mrs. Blystone. Mrs. Blystone indicated the existence of dysfunction and trauma within Appellant’s family during the interview, but, fearing that her husband would grow upset if she revealed the information, she refused to divulge specific details unless she was assured the information would not be made public. Mrs. Blystone was similarly evasive when interviewed by Dr. Leslie Lebowitz, a psychologist appointed by the court to evaluate the mitigating impact of Appellant’s traumatic upbringing, again refusing to reveal additional information about the dysfunction and trauma within Appellant’s family unless Dr. Lebowitz could promise her that it would not be made public.

As a result of Mrs. Blystone’s refusal to cooperate, Appellant’s counsel filed a motion for limited courtroom closure and temporary sealing of transcripts, seeking closure of the courtroom during Mrs. Blystone’s testimony regarding Appellant’s traumatic upbringing, during expert testimony discussing the same, and during closing arguments referring to such evidence, as well as seeking the temporary sealing of the related transcripts until Mrs. Blystone and her husband passed away. In support of closure, Appellant asserted that Mrs. Blystone “has considerable information concerning abuse suffered by [Appellant] at the hands of his father” which she would not reveal “absent a guarantee that the media and the public (and, by extension, her husband) will not be privy to the details of her testimony.” Closure Motion, 7/9/2014, at 7. Appellant claimed that his right to present all available mitigating evidence and, thus, his right to a fair trial, outweighed the public’s right to access criminal proceedings under the First Amendment of the United States Constitution and Article I, Sections 7 and 11 of the Pennsylvania Constitution, and that closure was narrowly tailored to the objective of eliciting Mrs. Blystone’s testimony because the closure would be limited to Mrs. Blystone’s testimony, and expert testimony and closing arguments addressing that testimony. Appellant also maintained that there were no reasonable alternatives to closure available which would address Mrs. Blystone’s concern about her husband learning of the substance of her testimony.

Additionally, Appellant’s counsel submitted an affidavit from Dr. Lebowitz with the motion, which detailed Mrs. Blystone’s lack of cooperation and opined that “[a]lthough [Dr. Lebowitz] cannot be certain of the precise nature of the information,” she is “confident that it relates to [Mrs. Blystone’s] perspective on the dysfunction that has marked this family over the course of fifty years, and it may include other, as-of-yet undisclosed anecdotes of abuse and dysfunction that she has witnessed.” Declaration of Leslie Lebowitz, P.H.D., 1/27/13, at 3.

The trial court ultimately denied Appellant’s motion, concluding the motion “was not sufficient to warrant an Order overcoming the presumption of openness of trials” articulated in Commonwealth v. Fenstermaker, 515 Pa. 501, 530 A.2d 414 (1987). Trial Court Order, 3/19/2014, at 1. In support of its decision, the trial court noted that the motion did not aver that Appellant attempted to subpoena Mrs. Blystone or use other means to gain her cooperation, nor did it suggest there would be any risk to Mrs. Blystone’s life or physical safety if she testified. Additionally, the court highlighted that Appellant filed the motion months before trial and before discovery had been completed, rendering the motion premature. Appellant presently appeals the trial court’s interlocutory order pursuant to Pa.R.A.P. 313(b), asserting the trial court erred in denying his closure motion.

II. Jurisdiction

Before we may entertain the merits of Appellant’s underlying claim, we must first determine whether this Court has jurisdiction to consider the appeal under Pa.R.A.P. 313(b). Although the Commonwealth has not raised a question regarding our jurisdiction over the trial court’s interlocutory order denying closure, we may nevertheless raise the issue of jurisdiction sua sponte, Commonwealth v. Shearer, 584 Pa. 134, 882 A.2d 462, 465 n. 4 (2005).

It is well settled that, generally, appeals may be taken only from final orders; however, the collateral order doctrine permits an appeal as of right from a non-final order which meets the criteria established in Pa.R.A.P. 313(b). Commonwealth v. Wright, 621 Pa. 446, 78 A.3d 1070, 1077 (2013). Pa.R.A.P. 313 is jurisdictional in nature and provides that “[a] collateral order is an order [1] separable from and collateral to the main cause of action where [2] the right involved is too important to be denied review and [3] the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost.” Pa.R.A.P. 313(b). Thus, if a non-final order satisfies each of the requirements articulated in Pa.R.A.P. 313(b), it is immediately appealable. Wright, 78 A.3d at 1077. However, we “construe the collateral order doctrine narrowly” so as to “avoid ‘piecemeal determinations’ ” and protracted litigation. Rae v. Pa. Funeral Dirs. Ass’n, 602 Pa. 65, 977 A.2d 1121, 1129 (2009).

With respect to the first prong of the collateral order doctrine, an order is separable from the main cause of action “if it can be resolved without an analysis of the merits of the underlying dispute.” Commonwealth v. Williams, 624 Pa. 405, 86 A.3d 771, 781 (2014). Stated differently, an order is separable if it is “entirely distinct” from the underlying issue in the case. Id. at 782. Although we tolerate a degree of interrelatedness “between merits issues and the question sought to be raised in the interlocutory appeal,” the claim must nevertheless be “conceptually distinct from the merits of plaintiff’s claim.” Pridgen v. Parker Hannifin Corp., 588 Pa. 405, 905 A.2d 422, 433 (2006) (quoting Johnson v. Jones, 515 U.S. 304, 314, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995)).

As to the second prong, for purposes of Rule 313(b), a right is important if “the interests that would go unprotected without immediate appeal are significant relative to the efficiency interests served by the final order rule.” Williams, 86 A.3d at 782. Additionally, “the order [must] involve[ ] rights deeply rooted in public policy going beyond the particular litigation at hand,” and “[i]t is not sufficient that the issue is important to the particular parties involved.” Id.

Upon review, in the present case, regardless of whether the order is separable from the main cause of action, and regardless of whether Appellant’s right to investigate and present mitigating testimony from his mother at his capital sentencing hearing may be deemed important for purposes of Rule 313(b), we find that Appellant’s claimed need for closure to vindicate this right will not be irreparably lost if review is postponed until after the sentencing hearing; thus, his claim fails the third prong of the collateral order doctrine. This case is unlike, for example, an interlocutory appeal of an order directing the discovery of privileged material, the prototypical example of a collateral order. See, e.g., Williams, supra; Commonwealth v. Harris, 612 Pa. 576, 32 A.3d 243 (2011); Ben v. Schwartz, 556 Pa. 475, 729 A.2d 547 (1999). In such cases, we have noted that “[o]nce putatively privileged material is in the open, the bell has been rung, and cannot be unrung by a later appeal” because the disclosure of such material “effectively destroy[s]” any privilege. Harris, 32 A.3d at 249. By contrast, Appellant may challenge the trial court’s order denying his closure request on appeal after final judgment, and, should we determine that the trial court erred in denying closure, we could vacate the judgment of sentence and order a new sentencing hearing at which Appellant would be entitled to introduce the testimony from Mrs. Blystone in partially closed proceedings. In short, his claimed right will not be irreparably lost. Thus, because any error by the trial court in denying Appellant’s closure motion is fully remediable after final judgment, it does not satisfy the third prong of the collateral order doctrine.

Accordingly, as Appellant has not satisfied the final prong of the collateral order doctrine, we are constrained to conclude the trial court’s order is not appealable under Pa.R.A.P. 313(b). Thus, because we lack jurisdiction to consider the instant appeal, we find the appeal must be quashed.

Appeal quashed. Jurisdiction relinquished.

Justices BAER and STEVENS join the opinion.

Chief Justice SAYLOR files a dissenting opinion.

Justice EAKIN files a concurring opinion.

Chief Justice SAYLOR,

dissenting.

In this 31-year-old first-degree-murder case, I would undertake interlocutory appellate review of the substantive issue presented as a matter of this Court’s supervisory prerogative.

The majority finds it appropriate to defer review until after the conclusion of the new penalty hearing, since “any error by the trial court in denying Appellant’s closure motion is fully remediable” at such time. Majority Opinion, at 271, 119 A.3d at 313. At this juncture, however, it is my position that extraordinary measures are appropriate to minimize the possibility of further, serial penalty hearings, perhaps entering into yet another decade.

Justice EAKIN,

concurring.

I agree with the expression of Justice Baer in his concurring opinion. The majority correctly notes appellant’s claimed “right will not be irreparably lost if review is postponed until after the sentencing hearing[.]” Majority Op., at 270, 119 A.3d at 312. I write merely to acknowledge that were this a Commonwealth appeal, be it from an order allowing or denying closure, quashal might not be appropriate. As the Commonwealth cannot appeal once the jury has returned its verdict, appellate review would be foreclosed and the right would indeed be irreparably lost.

      . We have jurisdiction over direct capital appeals pursuant to 42 Pa.C.S. § 722(4). Additionally, “[a]n appeal authorized by law from an interlocutory order in a matter shall be taken to the appellate court having jurisdiction of final orders in such matter.” Id. § 702(a).

      . 42 Pa.C.S. §§ 9541-9546.

      . Appellant merely cites Pa.R.A.P. 313(b) in his jurisdictional statement as the basis for our jurisdiction over this matter, but does not otherwise offer any argument as to how, specifically, the trial court’s interlocutory order satisfies Pa.R.A.P. 313(b). The Commonwealth does not challenge this basis for jurisdiction.