Hoffman v. Township of Whitehall

677 A.2d 1200, 544 Pa. 499, 1996 Pa. LEXIS 1283

• Court: Supreme Court of Pennsylvania
• Decided: June 19, 1996
• Status: Published

Opinions

OPINION OF THE COURT

FLAHERTY, Justice.

This is a direct appeal from a decision of the Court of Common Pleas of Lehigh County which held that the Veterans’ Preference Act, 51 Pa.C.S. § 7101 et seq., is unconstitutional insofar as it accords preferential treatment to veterans seeking promotions in public employment. See 42 Pa.C.S. § 722(7) (direct appeals from courts of common pleas).

The appellant, Michael M. Hoffman, is an honorably discharged veteran of the United States Army and is currently employed by Whitehall Township as a detective in the police department. He seeks promotion to the position of lieutenant. Appellant took the necessary written examination and received a passing score of 79.65. The Civil Service Commission declined to add veterans’ preference points to appellant’s score. As a result, appellant ranked fourth among the applicants and was eliminated from the final round of three who were considered for the position.

Appellant contends that ten preference points should have been added to his score in accordance with the following provision of the Veterans’ Preference Act:

(a) Commonwealth examinations.—Whenever any soldier shall successfully pass a civil service appointment or promotional examination for a public position under this Commonwealth, or any political subdivision thereof, and shall thus establish that he possesses the qualifications required by law for appointment to or promotion in such public position, such soldier’s examination shall be marked or graded an additional ten points above the mark or grade credited for the examination, and the total mark or grade thus obtained shall represent the final mark or grade of such soldier, and shall determine his standing on any eligible or promotional list, certified or furnished to the appointing or promoting power.

51 Pa.C.S. § 7103(a) (emphasis added). The term “soldier,” as used in this provision, includes veterans of the armed forces. 51 Pa.C.S. § 7101 (definition of “soldier”). It is undisputed, therefore, that appellant qualifies as a soldier to claim the ten point credit.

If the credit had been awarded, appellant would have been among the top three applicants and would have been placed on the list of final candidates. The following section of the Veterans’ Preference Act would then have given appellant preference over the other applicants:

(b) Name on civil service list.—Whenever any soldier possesses the requisite qualifications, and his name appears on any eligible or promotional list, certified or furnished as the result of any such civil service examination, the appointing or promoting power in making an appointment or promotion to a public position shall give preference to such soldier, notwithstanding, that his name does not stand highest on the eligible or promotional list.

51 Pa.C.S. § 7104(b) (emphasis added).

Although sections 7103(a) and 7104(b) apply to both initial appointments and promotions, their constitutionality is at issue here only with regard to promotions.

Certain types of statutory preferences for veterans seeking initial appointments were characterized as constitutional in Commonwealth ex rel. Graham v. Schmid, 333 Pa. 568, 3 A.2d 701 (1938). See also Brickhouse v. Spring-Ford Area School District, 540 Pa. 176, 656 A.2d 483 (1995). In Commonwealth ex rel. Maurer v. O’Neill, 368 Pa. 369, 83 A.2d 382 (1951), we emphasized the differences between preferences related to initial appointments and preferences related to promotions:

[T]he legislature, in authorizing the addition of ten percentage points to the veterans’ final examination marks in all competitive examinations for higher positions than the original appointments, has placed far too high a value on the benefit to the public service of the military training of veterans. In the case of an original appointment, the training a veteran has received in the armed forces will, no doubt, make him more amenable to the following of orders, the observance of regulations and, in other ways, tend toward making him a desirable employe. But the advantages to the public of this training are not absolute and, as time passes, the proportional benefit accruing to the public from the employment in such a service of veterans in preference to non-veterans gradually diminishes as both become proficient in the performance of their duties. In determining who is to be awarded a promotion, the skill of the particular examinees in the performance of their tasks is the prime consideration and compared to it the training gained by veterans solely as a result of military service becomes of very little importance. To credit veteran examinees in examinations for successive promotions with the same total of gratuitous percentage points as in the instance of their original appointment to a public position is, therefore, a totally unjustified appraisal of the value of their military training and highly prejudicial to the public service.

368 Pa. at 372-73, 83 A.2d at 383. We held that ten-point preferences in the promotion context were unconstitutional. Id. at 375, 83 A.2d at 384.

The Veterans’ Preference Act was later repealed and reenacted in its present form, effective in 1976. Section 7103(a), supra, contains the same provision giving veterans a ten-point credit toward promotions as was held unconstitutional in O’Neill. Section 7104(b), supra, contains an additional provision that strongly favors veterans. It mandates preference for a veteran who is among the final candidates for promotion, even where the veteran is not the most qualified applicant. A fortiori, if the ten-point credit is unconstitutional, so too must be the mandatory preference in the final selection process. The latter weighs military service no less heavily than does the ten-point credit.

Appellant contends that an amendment to our state constitution eliminated one of the provisions on which O’Neill relied, and that O’Neill is therefore no longer a valid precedent. Specifically, it is alleged that Art. Ill, § 7 of the Constitution of Pennsylvania was the basis of O’Neill’s holding that the statutory preference for veterans seeking promotions was “unreasonable and class legislation and therefore unconstitutional.” 368 Pa. at 375, 83 A.2d at 384. Art. Ill, § 7 provided that “The General Assembly shall not pass any local or special law ... [granting to any corporation, association or individual any special or exclusive privilege or immunity----” (Emphasis added.) O’Neill made no express reference to Art. Ill, § 7. It did, however, cite Schmid for the controlling principles as to whether the veterans’ preference was constitutional. 368 Pa. at 371-72, 83 A.2d at 383. Schmid relied on Art. Ill, § 7 and constitutional requirements as to the reasonableness of classifications and avoidance of arbitrary privileges. It stated:

[T]here must be some reasonable relation between the basis of preference and the object to be attained, the preference of veterans for the proper performance of public duties. Public policy, as well as constitutional restrictions, prohibits an unrestrained preference as it does a preference credit based on factors not representative of true value.

... [Wjhere war service is appraised ... beyond its value, and the preference goes beyond the scope of the actual advantages gained in such service, the classification becomes void and the privilege is held unreasonable and arbitrary.

333 Pa. at 573-74, 3 A.2d at 704. Thus O’Neill, through reliance on Schmid, had roots in constitutional provisions that included Art. Ill, § 7.

In 1967, Art. Ill, § 7 was amended and renumbered as Art. Ill, § 32. The amendment deleted the clause that prohibited laws granting special or exclusive privileges. However, language analogous to the deleted clause can still be found in Art. I, § 17, which provides that no law shall be passed “making irrevocable any grant of special privileges or immunities ____” (Emphasis added.)

Appellant contends that Art. I, § 17 differs from former Art. Ill, § 7 in that it allows preferences for veterans so long as the preferences are not “irrevocable.” It is clear, however, that sections 7103(a) and 7104(b), supra, set forth no means by which veterans’ preferences can be revoked. Nor does the language of those provisions even suggest that the preferences are revocable. Plainly, the preferences are not conditioned upon any factor or event. Quite obviously, too, one’s status as a veteran is not subject to revocation.

Appellant contends that the preferences should be considered revocable because unqualified veterans, like other unqualified applicants, can be excluded from the class of eligible candidates. Appellant notes that veterans, like other applicants, can be excluded from consideration for promotion if they do not meet minimum qualifications or if they are otherwise unfit.

* In such cases, however, the preferences are not in fact being revoked. Instead, they are simply not applicable to veterans who are not within the class of eligible candidates. We find no basis to conclude that statutory preferences favoring the promotion of veterans are revocable.

Further, although Schmid and O’Neill had roots in Art. Ill, § 7, they were not based on that provision alone. As stated in BHckhouse, 540 Pa. at 182 n. 2, 656 A.2d at 486 n. 2 (plurality opinion):

The “constitutional restrictions” ... referred to in Schmid derived from Article III, Section 7 of the Pennsylvania Constitution....

However, Schmid is also grounded on constitutional principles sounding in due process and equal protection:

[Veterans’] preferences have been considered by the courts under constitutional prohibitions against special privileges and unreasonable classification, and while the constitutional provisions differ somewhat in the various jurisdictions, they are similar in that all permit reasonable classifications and prohibit unreasonable ones and arbitrary privileges.

383 Pa. at 573, 3 A.2d at 704. (Emphasis added.)

O’Neill was similarly grounded in due process and equal protection. In fact O’Neill did not even expressly mention Art. Ill, § 7. The focus of the decision was on the reasonableness of the preference afforded veterans. Whether the classification between veterans and non-veterans was reasonable and whether the preference for veterans was arbitrary were at the core of O’Neill.

In short, O’Neill was not rendered invalid by the constitutional revision of Art. Ill, § 7. Under O’Neill, sections 7103(a) and 7104(b) of the Veterans’ Preference Act are, in the context of veterans seeking promotions in public employment, unconstitutional. Appellant’s complaint seeking relief under the Veterans’ Preference Act was, therefore, properly dismissed.

Order affirmed.

ZAPPALA, J., files a dissenting opinion which is joined by CASTILLE, J.

CASTILLE, J., files a dissenting opinion.

See, e.g., 53 Pa.S. § 55637, which provides grounds for rejection of applicants:

The commission may refuse to examine or, if examined, may refuse to certify after examination as eligible, any applicant who is found to lack any of the minimum qualifications for examination prescribed in the rules and regulations adopted for the position or employment for which he has applied, or who is physically disabled and unfit for the performance of the duties of the position to which he seeks employment, or who is addicted to the habitual use of intoxicating liquors or narcotic drugs, or who has been guilty of any crime involving moral turpitude or of infamous or notoriously disgraceful conduct, or who has been dismissed from public service for delinquency or misconduct in office, or who is affiliated with any group whose politics or activities are subversive to the form of government set forth in the Constitution and laws of the United States and Pennsylvania.