dissenting.
Because I disagree with the majority’s holding, I must respectfully dissent.
It is my belief that our Supreme Court has already decided the issue of whether a promoted public employee is an indispensable party to litigation disputing that promotion. In McGrath v. Staisey, 433 Pa. 8, 249 A.2d 280 (1968), our Supreme Court held that improperly appointed or promoted public employees, despite their potential interest in suits brought by colleagues disputing their appointment or promotion, are not indispensable parties to the litigation.
Indeed, this Court, in Appeal of Austerlitz, 63 Pa. Commonwealth Ct. 140, 437 A.2d 804 (1981), while questioning the rationale of McGrath, felt bound, nonetheless, by the clear pronouncement of our Supreme Court. Consequently, in that case, we reiterated the Supreme Court’s position that public employees who receive promotions are not indispensable parties to litigation challenging their promotions. Specifically, we stated:
The point has been settled. In McGrath v. Staisey, 433 Pa. 8, 249 A.2d 280 (1968), the Pennsylvania Supreme Court reiterated that improperly appointed or promoted public employees, despite their potential interest in the litigation, are not indispensable parties.
Austerlitz, 63 Pa. Commonwealth Ct. at 143, 437 A.2d at 805.
Recently, however, in Jefferson County Assistance Office v. Wolfe, 136 Pa. Commonwealth Ct. 115, 582 A.2d 425 (1990), this Court diverged from previously established case law by holding that public employees who receive promotions are indispensable parties to litigation challenging their promotions. As such, we refused in that case to address the merits of an appeal from litigation instituted by a colleague who was not selected for a promotion on the basis that the successful candidate for the promotion, being an indispensable party, was not provided with notice and an *642opportunity to be heard in violation of her due process rights. Accordingly, we vacated and remanded the order of the state civil service commission with directions that the successful candidate be given the opportunity to join in the litigation instituted by her unsuccessful colleague disputing her promotion.
The majority attempts to distinguish the seeming inconsistency between McGrath/Austerlitz and Jefferson County on the basis that the holdings in McGrath/Austerlitz were grounded upon the rights given by the various state statutes involved, rather than upon due process rights; whereas, in Jefferson County, the holding was based upon due process rights in that a civil servant, having a property interest in his or her position, cannot be removed without due process. Even if there were merit to this distinction, which I question, I still believe that the holdings in McGrath/Austerlitz control in the case at bar.
Here, the Union and the School District bargained for a collective bargaining agreement (agreement) which outlined a grievance procedure for disputing employee promotions. According to Appendix C Subsection 8 of the parties’ agreement, in the event that two or more employees have the same relative qualifications, as solely determined by the employer, the employee with the greater seniority shall be selected. By the School District upholding the Union’s grievance, it was determined that Cullura should not have been promoted to the position of General Maintenance I over another employee in the bargaining unit with equal qualifications, but greater seniority. As such, Cullura’s promotion was not valid and, therefore, he had no property interest in his “new” position and could be removed without due process.1 Accordingly, the rationale of Jefferson County cannot be applied to this case and, therefore, the holdings in McGrath/Austerlitz should control.
*643Furthermore, from my review of the relevant cases and the majority’s holding, it appears that the majority has turned the case law upside down to fit the facts of this case. In McGrath!Austerlitz and Jefferson County, the actions involved employees who were not selected for the promotion, disputing the promotion of a fellow employee. Here, in contrast, the action involves an employee who was initially selected for the promotion, but then removed from that position on the basis of the resolution of the Union’s grievance, and who now disputes his removal on the ground that it was unlawful pursuant to Section 514 of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 5-514.
Moreover, in this case, the majority holds that Cormack Bryant, the employee who was awarded the position based on the grievance proceeding, should be joined as an indispensable party to Cullura’s litigation, since his rights are threatened by the merits of the litigation. However, because Cullura was removed from his position on the basis of the resolution of the Union’s grievance, I believe that the real issue is whether Cullura was an indispensable party to the grievance proceeding, disputing his appointment. On this issue, I believe that McGrath controls.
For the foregoing reasons, I would not have remanded the matter for the joining of Cormack Bryant, as an indispensable party. Rather, I would have addressed the merits of Cullura’s appeal.
. If Cullura disputed the outcome of the grievance proceeding, he should have instituted his own grievance against the School District. That way, someone neutral, i.e. an arbitrator, would have determined who should have been awarded the position.