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Precedential or Non-Precedential: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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Recommended Citation
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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. § 1983

in 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, 

(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, 

(Pa. Commw. Ct. 1987),

appeal granted, 

(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 

.   See also G. Gordon
Brickhouse v. Spring Ford Area School Dist., 

, 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,   

(Pa.

1995); Feinerman v. Jones, 

, 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, 

(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 

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." 

(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, 

(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
          

.   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.

-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, 

(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 

.


           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.'"    

  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, 

(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, 

, 

, 

. 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 

.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."   

  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.

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, 

(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."    

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 

.
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, 

(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."   

  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."    

          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."    

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," 

not, as

Brickhouse urged, as "eligibility to be considered for the

position," 

  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."   

  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

(quoting 

)
(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., 

, 1365 (Pa. 1986) (quoting
Snider v. Thornburgh, 

, 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, 

,
156 (Pa. 1981) (quoting Gambone v. Commonwealth, 

,
637 (Pa. 1954)), appeal dismissed, 

(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, 

, 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., 

, 663 (3d Cir. 1980), cert. denied, 

(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., 

(1973); Rios
v. Dillman, 

(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, 

, 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." 

from Article 3, section
32 a "duty to carefully examine any law regulating trade," 

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 

.

          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.'"

.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

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, 

(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., 

(1995); see also Mardell v.
Harleysville Life Ins. Co., 

(3d Cir. 1994), vacated
and remanded for further consideration in light of McKennon, 

(1995).