Dissenting Opinion by
Judge Wilkinson, Jr. :I must respectfully dissent. I cannot agree that a properly motivated affirmative action program, call it reverse discrimination if you will, is objectionable or unconstitutional whether done voluntarily or by court order. Nor can I agree that an individual or commission cannot do voluntarily what can be ordered by a court to be done because it was not done voluntarily.
There is no need to set forth at length the history of the causes and effects of segregation and the legal basis for affirmative action programs to correct it. This has been done very currently and very ably by the lone dissenting judge in Lige v. Town of Montclair, 72 N.J. 5, 367 A.2d 833 (1976) and in Bakke v. Regents of University of California, 18 Cal. 3rd 34, 553 P.2d 1152 (1976), cert. granted, U.S. , 51 L. Ed. 2d 535 (1977).
It is most important to keep in mind always that, in my opinion, a properly motivated and administered affirmative action program only gives a preference to a member of a minority group after it is determined that an insufficient number have been admitted or employed and that he or she is qualified to do satisfactory work, either as a student or an employee. I would not consider the decision of this Court in this case of such great consequence if it had been based solely on the Act of June 27,1939, P.L. 1207, as amended, 53 P.S. §23491 et seq., which set up the civil ser*114vice system for firemen in second class cities. I agree with the lower court that this act is modified by the later Pennsylvania Human Relations Act, Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §951 et seq., and its amendments. However, the majority opinion is far more sweeping than that. If affirmative action programs are not authorized by the Pennsylvania Human Relations Act and are in fact contrary to it and the constitution, how then has the Pennsylvania Supreme Court and this Court ordered assignments of pupils to schools to correct de facto segregation? At the same time, consideration of color for pupil assignment which creates segregation is obviously illegal under the Pennsylvania Human Relations Act and unconstitutional. It is the motivation of the action which justifies the distinction between one and the other, as it does in so many other areas of the law. It is as incongruous to me to refer to giving a preference by race to qualified candidates who would not make it in competition on their own as being derogatory and patronizing to the intended beneficiary minority, as to say it would be derogatory and patronizing to throw a life preserver to a drowning man who is swimming against the current and could not make it alone.
Judge Rogers joins in this dissent.