Markel v. McIndoe ( 1995 )

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
7-11-1995
Markel v McIndoe
Precedential or Non-Precedential:
Docket 94-3152
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"Markel v McIndoe" (1995). 1995 Decisions. Paper 185.
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
NO. 94-3152
_______________
WILLIAM S. MARKEL
Appellant
v.
HARRY R. MCINDOE; MUNICIPALITY OF PENN HILLS,
a municipal corporation
Appellees
_______________
On Appeal from the United States District Court
for the Western District of Pennsylvania
D.C. No. 92-1551
_______________
Argued: September 20, 1994
______________
Before: BECKER and COWEN, Circuit Judges
and POLLAK, District Judge*
(Filed July 11, 1995)
Michael Louik, Esq. (Argued)
Berger, Kapetan, Meyers, Rosen,
Louik & Raizman
200 Frick Building
Pittsburgh, PA 15219
Attorney for Appellant
J. Alan Johnson, Esq.
Swensen, Peter & Johnson
Two PNC Plaza
*
. Honorable Louis H. Pollak, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
Suite 2710
Pittsburgh, PA 15222
Attorney for Appellee
Harry R. McIndoe
Wayne V. DeLuca, Esq. (Argued)
Damian & DeLuca
816 5th Avenue
Pittsburgh, PA 15219
Attorney for Appellee
Municipality of Penn Hills
_____________
OPINION OF THE COURT
_______________
POLLAK, District Judge.
This is an action brought pursuant to 42 U.S.C. § 1983in which appellant alleged that he was denied opportunities for
promotion in violation of his First and Fourteenth Amendment
rights. Appellees countered that the decisions to promote
persons other than appellant were made on the merits.
Subsequently appellees presented the additional contention that,
in any event, they were, as a matter of law, required by 51 Pa.
Cons. Stat. Ann. § 7104(b)  a section of Pennsylvania's
Veterans' Preference Act of August 1, 1975  to promote eligible
veterans ahead of appellant, a non-veteran. On the latter ground
appellees moved for summary judgment. The district court granted
summary judgment. We reverse and remand.
I
The appellant in this action is William Markel, a
police officer employed by the Municipality of Penn Hills
[hereinafter "Penn Hills"]. The appellees are Harry McIndoe and
Penn Hills. Mr. McIndoe has been municipal manager of Penn Hills
during all times relevant to this litigation. As municipal
manager, he has authority over the promotions of Penn Hills
police officers.
On November 4, 1986, McIndoe was arrested on a charge
of operating a motor vehicle while under the influence of
alcohol. Markel participated in the arrest and testified against
McIndoe at a preliminary hearing held on January 27, 1987.
Markel again testified against McIndoe at a related appellate
hearing held on March 30, 1988. Following these proceedings,
McIndoe entered and successfully completed a rehabilitation
program.
Some years later  in November 1991  Markel
participated in a civil service examination, the purpose of which
was to determine eligible candidates for promotion to the rank of
sergeant in the Penn Hills Police Department. According to the
Sergeant Candidates Eligibility List posted on December 9, 1991,
Markel ranked second out of twenty-one candidates for promotion.
On December 19, 1991, the person ranked third on the elibility
list was promoted to sergeant. On January 17, 1992, the person
ranked first was promoted. On February 2, 1992, the person
originally ranked fourth was promoted.
Markel subsequently instituted this § 1983 lawsuit,
contending that he had been passed over for promotion to sergeant
in retaliation for his activities relating to McIndoe's arrest
and court hearings. Such retaliation, he claimed, constituted a
violation of his constitutional rights under the First and
Fourteenth Amendments.1 Denying Markel's allegations, appellees
contended that the decisions to promote police officers other
than Markel had all been made on the merits.
At some point after the completion of discovery,
appellees learned of this court's decision in Carter v. City of
Philadelphia, 989 F.2d 117 (3d Cir. 1993)  and, evidently,
Carter led appellees to think about the Veterans' Preference Act
and, in particular, the provision codified at 51 Pa. Cons. Stat.
Ann. § 7104(b). Section 7104(b) reads as follows:
Whenever any soldier [i.e. veteran] 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.
1
. Officer Markel also contended that he was similarly denied
transfers to other, non-civil service, positions.
51 Pa. Cons. Stat. Ann. § 7104(b) (1976).2 After reviewing the
lists of those police officers certified as eligible for
promotion to sergeant, appellees moved for summary judgment.
Their argument  which the magistrate judge found persuasive 
was that, although § 7104(b) concededly played no actual role in
appellees' decisions relating to Markel, § 7104(b) would in any
event have prohibited appellees from promoting Markel ahead of
any eligible veterans. According to the findings of the
magistrate judge, fourteen of the twenty-one persons on the
December 9, 1991 eligibility list were veterans, including each
of the persons promoted to sergeant. In a brief order, the
district judge adopted the report and recommendation of the
magistrate judge.
On appeal, Markel argues that it was error to grant
summary judgment. Appellant's first and second arguments concern
the interpretation and validity of § 7104(b). Specifically,
appellant contends that: (1) § 7104(b), properly read, does not
mandate the promotion of a veteran on a civil service eligibility
list ahead of more qualified non-veterans; and (2) that the
promotional preference contemplated by § 7104(b), if it does so
mandate, contravenes the Pennsylvania Constitution and also the
federal Constitution. Alternatively, appellant contends that
2
. The provision was originally enacted as part of section 4 of
the Pennsylvania Veterans' Preference Act of 1945, 51 Pa. Stat.
Ann. § 492.4. That section was reenacted in 1975 as part of the
Veterans' Preference Act (Chapter 71 of the Military Code) of
August 1, 1975, which took effect January 1, 1976.
since § 7104(b) was not in fact an ingredient of appellees'
decisions to promote other officers in preference to appellant,
§ 7104(b) is irrelevant to the question whether appellees
trespassed on appellant's First and Fourteenth Amendment rights;
in appellant's view, § 7104(b) either has no proper role in this
case or should, at most, be considered only with respect to
remedy.3 We will first turn to appellant's argument regarding
the interpretation of § 7104(b).
II
Section 7104(b)  which applies to both appointments
and promotions  provides that the appointing or promoting
authority "shall give preference" to any veteran whose name is on
the eligible or promotional list "notwithstanding, that his name
does not stand highest on the eligible or promotional list."
Appellant contends that the magistrate judge  whose opinion was
adopted by the district court  erred in construing the statute,
pursuant to Pennsylvania case law, "as requiring the promoting
power to appoint a veteran over a non-veteran." According to
appellant's intepretation of § 7104(b), a non-veteran may be
3
. Appellant also contends that, even if § 7104(b) precludes
relief on his claim that he was wrongfully denied promotions to
sergeant, he has also presented claims of wrongful denial of
transfers to other, non-civil service, positions  claims which,
appellant argues, are outside the ambit of § 7104(b) and were not
addressed by the magistrate judge and the district court.
promoted over a veteran where "the non-veteran possesses superior
individual qualifications for the promotion being sought."
Appellant's Supp. Mem. of September 14, 1994, at 3. But
appellant's interpretation of § 7104(b) is without support in the
Pennsylvania cases.
The courts which have previously examinined § 7104(b)
have construed the "shall give preference" language as a mandate
that any veteran on a civil service eligibility list is to be
preferred over any non-veteran on the list. Thus, in Rasmussen
v. Borough of Aspinwall, 519 A.2d 1074 (Pa. Commw. Ct. 1987),
appeal granted, 533 A.2d 94 (Pa. 1987)4  a case on which the
magistrate judge relied  the Commonwealth Court reversed the
Court of Common Pleas' determination that § 7104(b) did not
require the appointment of the only veteran on the certified
list. As stated by the Commonwealth Court, "[w]hile [§ 7104(c)]
permits Borough Council to select a veteran who is not among the
three highest scoring applicants by using the word 'may,' Section
7104(b), by use of the imperative 'shall,' commands Council to
appoint the certified veteran if he or she is one of three on the
certified list." 519 A.2d at 1076. See also G. Gordon
Brickhouse v. Spring Ford Area School Dist., 625 A.2d 711, 715
(Pa. Commw. Ct. 1993) ("[Section 7104(b)] is to be applied in the
same manner as the preference in Section 7104(a)  the qualified
4
. Upon inquiry to the administrative office of the Pennsylvania
Supreme Court, we were informed that the appeal in Rasmussen was
discontinued on March 9, 1988.
veteran must be awarded the position, even if he or she stands
lowest on the list."), rev'd on other grounds, 656 A.2d 483 (Pa.
1995); Feinerman v. Jones, 356 F. Supp. 252, 257 (M.D. Pa. 1973)
(interpreting the identically-worded precursor to § 7104(b) in
the appointments context) ("It is true that under Section 4 of
the Act, if one of the three names is a veteran, he must be given
an absolute preference . . . .").5 To be sure, each of the cases
just cited arose in the context of appointments, not promotions;
but the phrase "shall give preference" comprehends both
appointments and promotions, and the Pennsylvania case law offers
no ground for reading the same words as mandatory in one setting
and non-mandatory in another. Indeed, in a recent promotion case
arising under § 7104(b), the Allegheny Court of Common Pleas
looked to the appointments cases as controlling authority
compelling an absolute preference for any veterans, as against
5
. This interpretation is buttressed by the Pennsylvania Supreme
Court's opinion in Commonwealth ex rel. Graham v. Schmid, 3 A.2d
710 (Pa. 1938)  a case discussed in further detail in part III
of this opinion. Schmid addressed, inter alia, a veterans'
preference law requiring that "[a]mong those persons possessing
qualifications and eligibility for appointment, preference in
appointment shall be given to honorably discharged soldiers and
sailors who served in the Army or Navy of the United States
during time of war." 3 A.2d at 702 n.1 (quoting § 4407 of the
Third Class City Law of June 23, 1931). The Schmid Court
interpreted the language as conferring an absolute preference:
"The provision that those in the first four of the eligible list
shall be preferred, appearing in the same section, must . . . be
construed to be mandatory, with the exception that the appointing
power need not select such veteran if it is found on a fair basis
that he is morally or physically unfit to be employed." Id. at
706 (emphasis added by Schmid court).
any non-veterans, on the promotional list. City of Pittsburgh v.
Fraternal Order of Police, Fort Pitt Lodge No. 1, No. GD94-017598
at 14 (Ct. C.P. Allegheny County Nov. 9, 1994) ("Pennsylvania
appellate court case law holds that § 7104(b) mandates that the
qualified veteran be awarded the position, even if he or she
stands lowest on the eligibility list.").
We see no reason to depart from this interpretation.
We conclude that § 7104(b)  considered apart from
constitutional objections  requires the promotion of any
veteran on the eligilibity list over any non-veteran.
III
Having determined that § 7104(b) contemplates a
mandatory promotional preference for veterans over non-veterans,
we now turn to the question whether, as so construed, § 7104(b)
offends the Pennsylvania Constitution.
A. The Validity under the Pennsylvania Constitution of Veterans'
Preference Statutes that Antedated the Present Statute
In order to put this state constitutional claim in
doctrinal context, we begin our analysis by referring to
decisions of the Pennsylvania Supreme Court construing statutory
schemes which preceded the current Veterans' Preference Act.
Almost sixty years ago, in Commonwealth ex rel. Graham
v. Schmid, 3 A.2d 701 (Pa. 1938), the Pennsylvania Supreme Court
considered constitutional challenges to two provisions of the
Third Class City Law of June 23, 1931. Section 4405, 53 P.S.
§ 12198-4405  one of the two challenged provisions  directed
that whenever any honorably discharged war veteran who was a
candidate for appointment or promotion:
shall take any examination for appointment or
promotion, his examination shall be marked or
graded fifteen per centum perfect before the
quality or contents of the examination shall
be considered. When the examination of any
such person is completed and graded, such
grading or percentage as the examination
merits shall be added to the aforesaid
fifteen per centum, and such total mark or
grade shall represent the final grade or
classification of such person and shall
determine his or her order of standing on the
eligible list.
The other challenged provision  Section 4407, 53 P.S. § 12198-
4407  (1) required municipal authorities to give a preference,
in making appointments to the jobs in question, to any honorably
discharged war veterans who, having passed a prescribed civil
service examination, were among the top four persons on the
eligible list, and (2) authorized the appointing authorities to
extend a preference to veterans with a passing grade even if they
were not among the top four.
The litigation that came before the Pennsylvania
Supreme Court was triggered by the action of the City of Erie in
appointing to the post of assistant building-inspector a non-
veteran, Joseph A. Schmid. Schmid stood highest among the
fifteen persons certified as achieving a passing grade of 70.0 or
better on the civil service examination. Schmid's grade was
94.2. James J. Leach, a veteran, was second: his grade  with
the aid of the fifteen percent bonus mandated by § 4405  was
92.4. Stephen P. Markham, also a veteran, was fourth: his grade
 with the aid of the fifteen-percent bonus  was 83.0; without
the bonus Markham would not have achieved a passing grade. When
Schmid was appointed assistant building-inspector, Leach and
Markham instituted quo warranto proceedings in the Court of
Common Pleas. Losing in that court, they appealed to the state's
highest court.
The questions addressed by the Pennsylvania Supreme
Court were whether, in the context of appointment to a municipal
position, § 4405  adding fifteen-percent to a veteran's civil
service score  and § 4407  requiring a preference for a
veteran among the top four successful examinees, and permitting a
preference for other veterans who had passed the examination 
offended Article III, Section 7 of the Pennsylvania Constitution
which, at that time, barred the General Assembly from "pass[ing]
any local or special law . . . [g]ranting to any corporation,
association, or individual any special or exclusive privilege or
immunity . . . ." Speaking through Chief Justice Kephart, the
court ruled unanimously that (1) § 4407's mandatory preference
for a veteran listed among the top four successful examinees was
valid, but (2) § 4405's fifteen percent bonus for all veterans,
including those who without the bonus did not achieve a passing
grade, was invalid.
En route to reaching these conclusions, Chief Justice
Kephart canvassed numerous cases in other jurisdictions assessing
similar statutes:
The underlying principle in all cases is
that to sustain any preference the veteran
must possess the minimum qualifications to
perform the duties involved. . . . The theory
on which the cases are decided is that, while
it may be perfectly lawful to prefer
veterans, there must be some reasonable
relation between the basis of preference and
the object to be obtained, the preference of
veterans for the proper performance of public
duties. . . .
As a basis for appointment it is not
unreasonable to select war veterans from
candidates for office and to give them a
certain credit in recognition of the
discipline, experience and service
represented by their military activity. No
one should deny that these advantages are
conducive to the better performance of public
duties, where discipline, loyalty, and public
spirit are likewise essential. The fact that
veterans either through voluntary enlistment
or conscription have been to wars for the
preservation of their country should be given
some consideration. It is the greatest
service a citizen can perform, and it comes
with ill grace for those of us not in such
wars to deny them just consideration. Where
the preferences reasonably and fairly
appraise these advantages, there can be no
question of illegal classification and
arbitrary privilege. But, on the other hand,
where war service is appraised, in the
allotment of public positions, 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.
3 A.2d at 704. From these premises, illuminated by extensive
reference to the case law in other states, it followed that:
There can be no objection to the provision
of section 4407 which permits a preference of
any veteran on the eligible list. The
provision that those in the first four of the
eligible list shall be preferred, appearing
in the same section, must, however, be
construed to be mandatory, with the exception
that the appointing power need not select
such veteran if it is found on a fair basis
that he is morally or physically unfit to be
employed. Thus construed it is
constitutional under all the cases which have
been cited. In none of those was a mandatory
preference for veterans who had passed the
examination held unconstitutional.
But statutes completely exempting veterans
from taking the customary examinations for
civil service positions have been ordinarily
held unconstitutional since they do not
require the appointees be fit for the
position. . . .
. . . .
It therefore clearly appears that the
decisions of other states condemn the
provision of section 4405 giving fifteen
percent credit in advance to veterans as
unconstitutional. It is not distinguishable
from a statute which would allow a fifteen
percent lower passing grade for veterans. It
gives undue weight to the military and public
experience of the veterans and in that way
constitutes a special and exclusive
privilege.
Id. at 706-07 (emphasis in original).
Accordingly, the court reversed the judgment of the
trial court; since § 4407 was valid, and Leach was found to rank
among the top four successful examinees even without the flawed
fifteen-percent bonus, the trial court on remand was directed to
enter judgment ordering the removal of Schmid and also ordering
the appointment of Leach, unless Leach was found to be physically
or morally unfit.
A year after Schmid, the Pennsylvania Supreme Court, in
Carney v. Lowe, 9 A.2d 418 (Pa. 1939), addressed another
controversy arising in Erie under the Third Class City Law. This
time the issue was the propriety of including, on the list of
persons certified as eligible for appointment, fifteen veterans,
all of whom (1) had passed the required civil service examination
but (2) were older (they ranged in age from thirty-seven to
forty-four) than the age ceiling for initial appointment as a
police officer  namely, the age of thirty-five  prescribed by
the civil service board. The inclusion of the veterans was
deemed to be justified (or perhaps mandated) by the final
sentence of § 4407: "Such [preferential] appointment of
soldiers, sailors and marines may be made without regard to any
age limitations now provided for by law or the rules and
regulations of any board or commission having in charge civil
service regulations in any county, city or borough."
On application of fifteen non-veterans who had passed
the civil service examination, the Court of Common Pleas ordered
that the names of the fifteen veterans be removed from the
eligible list. In a unanimous ruling the Pennsylvania Supreme
Court affirmed. Speaking through Justice Horace Stern, the court
found the issue to be controlled by the previous year's ruling in
Schmid. Applying Schmid, the Court said:
To require that an applicant for a position
in the police department be below a certain
age is the prescription of a qualification
for eligibility. To permit war veterans to
be appointed even though above such maximum
is not the mere granting to them of a
preference if otherwise eligible but the
setting up for them of a standard of
eligibility different from that established
for other applicants. Therefore it is clear
that the permitted waiver of the age limit
provided by section 4407 is unconstitutional.
9 A.2d at 420.
In a footnote to his opinion in Carney v. Lowe, Justice
Stern pointed out that the legislature had, on June 27, 1939,
passed a new statute intended, according to section 5, 51 Pa.
Stat. Ann. § 491.5, to serve as "'the exclusive law applying to
the Commonwealth and its political subdivisions in giving
preference to soldiers in appointment to public position.'" Id.
at n.2. Six years later, in the spring of 1945, with the end of
World War II in sight, the legislature enacted the Veterans'
Preference Act of May 22, 1945, which replaced the 1939 statute.
The 1945 statute became the focus of Commonwealth ex rel. Maurer
v. O'Neill, 83 A.2d 382 (Pa. 1951), a further examination of the
constitutionality of veterans' preference statutes. The
Pennsylvania Supreme Court has not addressed the
constitutionality of such statutes since O'Neill.
While Schmid and Carney v. Lowe dealt with initial
appointment to public office, O'Neill dealt with promotion  the
process at issue in the case at bar. The focus of O'Neill was
Section 3 of the Veterans' Preference Act of May 22, 1945, which
provided as follows:
Whenever any soldier [i.e. veteran] shall
successfully pass a civil service appointment
or promotional examination . . . 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 . . . thus obtained . . .
shall determine his standing on any eligible
or promotional list, certified or furnished
to the appointing or promoting power.
In 1949, the Fire Bureau of the City of Philadelphia
conducted a civil service examination for promotion to the rank
of captain. George Braden, a non-veteran, achieved a passing
grade of 79.59. Among the other officers who passed the
examination were certain veterans who, with the aid of the
"additional ten points" called for by Section 3 of the Veterans'
Preference Act, achieved scores of 81.47 to 88.05. In
consequence, the veterans were promoted to captain and Braden was
not. Braden then brought a quo warranto proceeding in the Court
of Common Pleas, challenging the constitutionality of Section 3.
Losing in the trial court, Braden appealed to the Pennsylvania
Supreme Court. That court reversed the judgment of the Court of
Common Pleas and directed that the several challenged promotions
be rescinded.
The opinion in O'Neill was delivered by Chief Justice
Drew. The core of the court's holding is contained in the
following paragraphs:
At the outset it is conceded that the
granting of a preference in the case of
original appointments is constitutional.
That question was decided in Commonwealth ex
rel. Graham v. Schmid, 333 Pa. 568, 3 A.2d
701, 120 A.L.R. 777. We there laid down the
test to be used in determining such cases,
stating 333 Pa. at p. 573, 3 A.2d at page
704: ". . . there must be some reasonable
relation between the basis of preference and
the object to be obtained, 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 their true value."
When we apply that test to the facts of
this case, we can come only to the conclusion
that, because of the difference between an
original appointment and a promotion, the
award of the ten percentage point preference
to veterans in examinations for promotions is
unreasonable and therefore unconstitutional.
In the Schmid case, Mr. Chief Justice Kephart
pointed out that preferences to veterans in
appointments to public office are reasonable
because the discipline, experience and
service represented by the veterans' military
activity makes them more desirable applicants
for public positions where discipline,
loyalty and public spirit are essential, than
those who have not served in one of our
military organizations. But, the former
Chief Justice qualified the right of the
legislature to grant such preferences when he
added that "where war service is appraised,
in the allotment of public positions, 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." We do not doubt but that the
military training received by veterans during
the course of their service renders them
superior candidates for public offices of the
nature now under consideration. However, we
are convinced that the legislature, in
authorizing the addition of ten percentage
points to the veterans' final examination
marks in all competitive examinations for
higher positions that 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 employee. 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.
. . . .
It follows from what has been said that
the Veterans Preference Act, in granting the
same preference to veterans in examinations
for promotions as is granted in their
original appointments to a public office is
unreasonable and class legislation and
therefore unconstitutional.
83 A.2d at 382-84.6
B. The Present Statute
The present veterans' preference statute  the statute
of which § 7104(b) is a part  is the Veterans' Preference Act
of August 1, 1975, which took effect on January 1, 1976. On June
15, 1976, the Attorney General of Pennsylvania issued Opinion No.
76-17. That Opinion addressed the constitutionality of the two
provisions of the present statute which are derived from  and,
indeed, in their effective operative language, are verbatim
continuations of  the statutory provisions considered in Schmid
and O'Neill. One of the two provisions addressed by the Attorney
General was current § 7103(a), which adds ten points to the
examination score of a veteran who "shall successfully pass a
civil service appointment or promotional examination." The other
provision addressed by the Attorney General was current
§ 7103(b), which directs that a veteran's examination "shall be
marked or graded 15% perfect before the quality or contents of
6
. Justice Allen Stearne, joined by Justices Horace Stern and
Grover Ladner, dissented; the dissenters found no difference of
constitutional magnitude between an original appointment and a
promotion.
the examination shall be considered." With respect to § 7103(a),
the Attorney General characterized O'Neill's assessment of the
virtually identical provision in the 1945 Veterans' Preference
Act as a holding that the provision "was unreasonable and class
legislation insofar as it attempted to grant veterans a 10 point
preference on promotion examinations." Opinions of the Attorney
General of Pennsylvania, No. 76-17, at 54 (1976). With respect
to § 7103(b), the Attorney General characterized Schmid's
assessment of the virtually identical provision of the 1931 Third
Class City Law as a holding "that a credit to veterans of points
to aid them in passing civil service examinations is
unconstitutional," a holding "reaffirmed by the [Pennsylvania]
Supreme Court in Carney v. Lowe." Id. at 55. The Attorney
General then stated:
The Statutory Construction Act of 1972,
provides "that when a court of last resort
has construed the language used in a statute,
the General Assembly in subsequent statutes
on the same subject matter intends the same
construction to be placed upon such
language." 1 Pa. C.S. § 1922(4). Thus,
reenactment continues the prior law,
including all judicial construction thereof.
Consequently, the two provisions in question
are still unconstitutional.
Id.
Like §§ 7103(a) and (b), discussed in the Attorney
General's 1976 Opinion, § 7104(b)  the statutory provision
involved in the case at bar, directing the "appointing or
promoting power" to "give preference" to a veteran whose name
appears "on any eligible or promotional list . . .
notwithstanding, that his name does not stand highest on the
eligible or promotional list"  was drawn essentially verbatim
from antecedent veterans' preference legislation.7 Presumably,
the fact that the Attorney General did not mention § 7104(b) in
his 1976 Opinion traces to the fact that § 7104(b)'s statutory
ancestor was not discussed in Schmid, Carney v. Lowe, or O'Neill.
In 1993, when this court, in Carter v. City of Philadelphia, 989
F.2d 117 (3d Cir. 1993), had occasion to consider § 7104(b) 
holding that Philadelphia's Civil Service Regulations were
preempted by the state statute  we noted that "[t]he
constitutionality of the preference of § 7104(b) or its prior
identical provision in 51 P.S. § 492-4 is not before us, nor does
it appear, historically, to have ever been challenged on these
grounds before the Commonwealth's appellate courts." Id. at 121
n.5.8
The question not before the Carter court is presented
by the case at bar. In examining that question, we first inquire
whether  given that the Pennsylvania Supreme Court has not had
occasion to assess the constitutionality of veterans' preference
statutes for over forty years  the constitutional framework
7
. See note 2, supra.
8
. Subsequent to Carter, the constitutionality of § 7104(b), as
applied in a promotional context, was addressed by Judge Wettick
of the Allegheny County Court of Common Pleas. On the authority
of O'Neill, Judge Wettick held that in a promotional context
§ 7104(b) is unconstitutional. See note 13, infra.
erected by that court starting in the late 'thirties and
continuing into the 'fifties is still in place.
It was in 1975 that the Attorney General of the
Commonwealth  looking back to Schmid, decided in 1938, and to
the two cases which followed it, Carney v. Lowe, decided in 1939,
and O'Neill, decided in 1951  concluded that the decades-old
trilogy stated enduring constitutional doctrine. Is it the case
that the lapse of almost twenty years since the Attorney General
rendered his Opinion has undermined the authority of Schmid and
its sequelae?
Just three months ago, the Pennsylvania Supreme Court,
in Brickhouse v. Spring-Ford Area School District, 656 A.2d 483(Pa. 1995) offered strong evidence that Schmid remains a
controlling precedent. Brickhouse presented a question as to the
proper interpretation of § 7104(a)  a companion to § 7104(b) 
which provides a "preference" in appointments and promotions to
non-civil service public positions for any veteran possessing
"the requisite qualifications."9 The plaintiff in Brickhouse was
a veteran who, notwithstanding that he held a valid Pennsylvania
teacher's certificate, was turned down for a position teaching
social studies in the Spring-Ford Area School District; in lieu
of plaintiff the defendant school district hired a non-veteran.
9
. In contrast, section 7104(b)  the provision at issue in the
case at bar  directs that a veteran certified via a civil
service examination as qualified for appointment or promotion
shall be given "preference . . . notwithstanding, that his name
does not stand highest on the eligible or promotion list."
The plaintiff's position was "that to be qualified to teach in
Pennsylvania, the only requirements are that one be of sound
moral character, over eighteen years of age and be certified to
teach by the Commonwealth, and that once he is qualified, he must
be awarded the job." Id. at 486. The school district's position
was "that although Brickhouse was certified to teach in
Pennsylvania, he was not qualified to teach in this particular
school district, where high academic performance, outstanding
recommendations, and current references were required." Id. at
485.
In rejecting Brickhouse's claim to a statutory
preference, the court turned for guidance to Schmid, which it
characterized as "[t]he landmark case in the area." Id. at 486.
Relying upon the analysis the court had found persuasive in
Schmid, the court in Brickhouse defined "qualified" as the
"ability to perform the job at the level of skill and with the
expertise demanded by the employer," id.  and not, as
Brickhouse urged, as "eligibility to be considered for the
position," id. at 487. Based upon this understanding of the word
"qualified," the court found that "there is no doubt that the
school district's criteria for employment were rationally related
to the job and that Brickhouse's credentials did not qualify him
for the job." Id. at 487-88. The court thus used Schmid as the
basis for a restrictive interpretation of the veterans'
preference afforded by § 7104(a).10
10
. The Brickhouse court briefly discussed the fact that the
constitutional provision upon which Schmid had relied  former
Article III, section 7  had been repealed. That section
prohibited "any local or special law . . . [g]ranting to any . .
. individual any special or exclusive privilege or immunity."
(Article 3, section 32, the current constitutional provision
barring the enactment of a "local or special law in any case
which has been or can be provided for by general law," has not
retained the "special or exclusive privilege or immunity"
language, but similar language is to be found in Article 1,
section 17, which provides that "[n]o ex post facto law, nor any
law impairing the obligation of contracts, or making irrevocable
any grant of special privileges or immunities, shall be passed.")
The Brickhouse court noted that "[i]n 1967, this [Article III,
section 7] language was deleted from the constitution by
amendment," and then went on to observe:
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
Brickhouse, 656 A.2d at 486 (quoting Schmid, 3 A.2d at 704)
(emphasis added by Brickhouse court).
The Pennsylvania Constitution's equal protection guarantees
are understood to reside in Article 1, section 26 and Article 3,
section 32. Article 1, section 26 provides: "Neither the
Commonwealth nor any political subdivision thereof shall deny to
any person the enjoyment of any civil right, nor discriminate
against any person in the exercise of any civil right." Article
3, section 32 prohibits the General Assembly from passing any
Since the Pennsylvania Supreme Court has so recently
underscored Schmid's validity  and, in particular, the
limitations it sets forth on veterans' preferences  it seems
probable that O'Neill, which applied the principles of Schmid to
promotions, would also be regarded by that court as a precedent
that offers reliable guidance.11 It will be recalled that in
(..continued)
"local or special law in any case which has been or can be
provided for by general law," and specifically prohibits local or
special laws in eight enumerated categories. Where neither
suspect or "sensitive" classifications nor fundamental or
"important" rights are involved, the equal protection guarantees
have been intepreted to require that any distinction created by
the legislation be "'reasonable, not arbitrary'
" and "'rest[] upon a difference having a fair and substantial
relation to the object of the legislation.'" Commonwealth v.
Parker White Metal Co., 515 A.2d 1358, 1365 (Pa. 1986) (quoting
Snider v. Thornburgh, 436 A.2d 593, 597 (Pa. 1981)). Similarly,
the Pennsylvania Supreme Court has recognized that state
substantive due process guarantees prohibit laws which are
"'unreasonable, unduly oppressive or patently beyond the
necessities of the case,'" or which employ means without a "'real
and substantial relation to the objects sought to be attained.'"
Laudenberger v. Port Authority of Allegheny County, 436 A.2d 147,
156 (Pa. 1981) (quoting Gambone v. Commonwealth, 101 A.2d 634,
637 (Pa. 1954)), appeal dismissed, 456 U.S. 940 (1982). (The
source of the state substantive due process guarantees, while
frequently not identified in the caselaw, appears to be Article
1, section 1. See Pennsylvania Medical Soc'y v. Foster, 608 A.2d
633, 637 (Pa. Commw. 1992)). Thus, the applicable legal standard
set forth by current state equal protection and due process law
is, like the standard applied in Schmid, one based on
"reasonableness."
11
. In predicting how the Pennsylvania Supreme Court is likely
to resolve a question of Pennsylvania law, it is our practice to
consider "relevant state precedents, analogous decisions,
considered dicta, scholarly works, and any other reliable data
tending convincingly to show how the highest court in the state
would decide the issue at hand." McKenna v. Ortho Pharmaceutical
Corp., 622 F.2d 657, 663 (3d Cir. 1980), cert. denied, 449 U.S.
976 (1980). We find that the Brickhouse court's heavy reliance
on Schmid, its consideration of the relevant constitutional
O'Neill the court considered the constitutionality of awarding a
(..continued)
principles underlying Schmid, and, in particular, its willingness
to use Schmid as a springboard for a restrictive interpretation
of the term "requisite qualifications" in § 7104(a), offer
considerable evidence of continued allegiance to the limitations
placed on veterans' preference laws in Schmid and O'Neill 
limitations which the Pennsylvania Attorney General, in 1976,
concluded were still in effect.
It is, of course, possible that if the Pennsylvania Supreme
Court were today to be examining veterans' preference statutes
for the first time it would adopt a standard of "reasonableness"
less demanding than that applied in Schmid and reaffirmed in
O'Neill. Two federal cases rejecting equal protection challenges
to state preferential promotions statutes would, arguably, offer
support for such a relaxed standard. Koelfgen v. Jackson, 355 F.
Supp. 243 (D. Minn. 1972), aff'd mem., 410 U.S. 976 (1973); Rios
v. Dillman, 499 F.2d 329 (5th Cir. 1974). On the other hand, the
Pennsylvania Supreme Court has shown a willingness to "carefully
scrutinize the validity" of laws implicating Article 3, section
32's specific prohibition of "any local or special law . . .
[r]egulating labor, trade, mining, or manufacturing." Kroger Co.
v. O'Hara Township, 392 A.2d 266, 274 (Pa. 1978). In Kroger, the
court noted that "[w]hile there may be a correspondence in
meaning and purpose between [the federal and state equal
protection guarantees], the language of the Pennsylvania
Constitution is substantially different from the federal
constitution. We are not free to treat that language as though
it were not there." Id. After deriving from Article 3, section
32 a "duty to carefully examine any law regulating trade," id.,the court went on to hold that Pennsylvania's scheme of Sunday
trading laws was unconstitutional  despite United States
Supreme Court precedent suggesting a more permissive approach.
Since the veterans' preference statute is a law "regulating
labor," the Pennsylvania Supreme Court could, in consonance with
Kroger, conclude that a similar, more searching, examination
should be applied to statutes providing veterans' promotional
preferences.
However, speculation about how the Pennsylvania Supreme
Court might proceed were it addressing veterans' preference
statutes for the first time need not detain us. The court has,
in fact, had occasion to consider statutes of this sort in
several cases over a space of nearly sixty years. Brickhouse
shows that the current court continues to look for guidance to
the Schmid-O'Neill jurisprudence. We see no reason to anticipate
that the court will jettison that jurisprudence.
ten-point bonus to veterans who had passed a promotional
examination for the position of fire captain. The court held
that such a bonus  placing the veterans higher on the certified
list than the non-veteran plaintiff  would have been
permissible at the initial appointment stage but was not
constitutionally supportable at the promotional stage: "the
advantages to the public of this [military] training are not
absolute and, as time passes, the proportional benefit accruing
to the public from the employment . . . of veterans in preference
to non-veterans gradually diminishes as both become proficient in
the performance of their duties" and "[i]n 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." 83 A.2d
at 383.
In O'Neill, the veterans' preference held to be
unconstitutional was contingent in that a veteran on the
certified list had to score within ten points of a competitor
non-veteran to lay claim to the promotion. By contrast,
§ 7104(b) confers upon every veteran on the certified list a
promotional "preference . . . notwithstanding, that the veteran's
name does not stand highest on the . . . list."12 We conclude
12
. In Carter we noted that, although the plaintiff
"interchangeably posit[ed] a secured property right in both a
'preference in promotion' and a 'promotion' . . . [t]he
Pennsylvania statute clearly bequeaths only the lesser right 
that in light of the Pennsylvania Supreme Court's willingness to
invalidate the more limited preference scheme in O'Neill, that
court would hold § 7104(b)'s absolute promotional preference to
be unconstitutional as "'unreasonable' and 'class legislation.'"
O'Neill, 83 A.2d at 384.13
In sum, we conclude that, if the issue were to come
before the Pennsylvania Supreme Court, that court would hold
that, in the context of promotions, the veterans' preference
contemplated by § 7104(b) is incompatible with the Pennsylvania
(..continued)
that of a preference in promotion  and not an unequivocal right
to a promotion to a sergeant's position because of his veteran's
status." 989 F.2d at 119 n.4. The "lesser right"  not a right
to require that a promotional vacancy be filled but a right to
"preference" if the vacancy is filled  is, of course,
sufficient to defeat the claim of any qualified non-veteran.
13
. The point is made succinctly in the one Pennsylvania case of
which we are aware that has addressed the constitutionality of
the promotional preference contemplated by § 7104(b). In City of
Pittsburgh v. Fraternal Order of Police, Fort Pitt Lodge No. 1,
No. GD94-017598 (Ct. C.P. Allegheny County Nov. 9, 1994), Judge
Wettick put the matter as follows:
If a statutory provision which only awards
ten points to veterans who have passed a
promotional examination violates the
Pennsylvania constitutional provision
prohibiting the grant of special privileges,
a legislative provision that automatically
moves a veteran who passed the examination to
the top of the promotional list gives greater
weight to military service and, thus, is a
more egregious violation of this
constitutional provision.
City of Pittsburgh, slip op. at 14.
Constitution.14 Under these circumstances, the appellees could
not properly rely on § 7104(b) as a ground for denying appellant
a promotion. Thus, § 7104(b) was not a legally cognizable
defense against appellant's § 1983 claim.
Conclusion
For the reasons given in part III of this opinion, the
district court's grant of summary judgment was in error.
Accordingly, the judgment of the district court is reversed and
the case is remanded to the district court for further
proceedings consistent with this opinion.
14
. Appellant also contends that "for those same reasons as set
forth in O'Neill, the Act [§ 7104(b)] would violate the Equal
Protection Clause and Due Process clauses [sic] of the United
States Constitution as the Act would not be reasonably related to
any legislative purpose." Brief of Appellant at 20. Appellees
disagree, citing Hooper v. Bernalillo County Assessor, 472 U.S.
612 (1985). Since we find § 7104(b), as applied to promotions,
is inconsistent with the Pennsylvania Constitution, there is no
need for us to address the federal constitutional question. We
also need not consider appellant's claim that appellees' ex post
facto invocation of § 7104(b) should either have been wholly
disregarded or treated in a manner similar to after-acquired
evidence of employee misconduct. See McKennon v. Nashville
Banner Publishing Co., 115 S. Ct. 879 (1995); see also Mardell v.
Harleysville Life Ins. Co., 31 F.3d 1221 (3d Cir. 1994), vacated
and remanded for further consideration in light of McKennon, 115
S. Ct. 1397 (1995).