dissenting.
I dissent and would affirm the Commonwealth Court’s holding in this ease. (Chmill, et al. v. City of Pittsburgh, et al., 31 Pa.Cmwlth. 98, 375 A.2d 841 (1977).) This case reached the state courts after initial rulings made in the Federal District Court. In 1974, the U.S. District Court for the Western District of Pennsylvania, in Commonwealth of Pennsylvania v. Glickman, 370 F.Supp. 724 (W.D.Pa.1974), found that the City of Pittsburgh had been discriminating against blacks in the hiring of fire fighters. It was specifically found that the testing procedures were “discriminatory.”
Following the 1974 ruling, the Civil Service Commission for the City of Pittsburgh abandoned its written testing procedure and, instead, put into effect a job-related physical agility test. No one has claimed, as indeed it would be difficult to assert, that the physical agility test discriminated against blacks.
Despite the non-discriminatory nature of the test, and despite the abundant attempts to recruit blacks through an affirmative action program, the effects of the 1975 testing procedure were that only three of the first twenty of those who passed the test were black. Upon observing this result, the Civil Service Commission, without seeking legislative or court approval, independently imposed a quota system *505whereby ten whites and ten blacks were certified to become fire fighters. Those whites who had been eliminated from the certification through the quota system filed the instant case.
In an attempt to analyze the appropriateness of such a unilateral action by the Commission, it is necessary to look to the position which the Federal Court has taken in these proceedings.
The majority accepts the fact that there must be a judicial finding of discrimination before a quota system can be invoked. In support of a finding that this has occurred in the instant case, the majority relies on the “existing federal judicial finding of discrimination in the Bureau of Fire”, and the Common Pleas Court’s finding that the Commission’s proposed action was a necessary practical step to correct that discrimination.
As for the Common Pleas Court’s finding, little solace can be gained, since this Court’s ruling was subsequent to the Commission’s actions and cannot be used as a basis for finding that the Commission had a judicial finding upon which it could rely. This most certainly is a boot strap argument.
As for the supposed federal finding of discrimination, we must analyze what the Federal Court has said in this case.
In Glickman, supra, Judge Teitelbaum specifically rejected a quota system for fire fighters. The judge saw a difference between police departments and fire departments, and found that, as for a fire department, there was not the “urgency and necessity for imposing the drastic remedy of a racial hiring quota.” (Emphasis added).
Glickman was followed in the Western District Court by Commonwealth of Pennsylvania v. Flaherty, 404 F.Supp. 1022 (W.D. of Pa.1975). Here, the Federal District Court did invoke a quota system for the hiring of police officers. However, the Court, through Judge Weber, adopted the reasoning of the Glickman case and stated:
*506We agree entirely with the rationale of Judge Teitelbaum of this court, as expressed in [Glickman] on a greater urgency of the application of a quota system in a case involving a police force than a fire department, (p. 1030)
If there was any doubt left that the Federal Court did not believe that a quota system should not be invoked for the Pittsburgh fire fighters, that doubt should have been dispelled when defendants tried to remove the instant case to the Federal Court. In denying removal and in remanding the case to the state court, Judge Rabe Marsh said:
Indeed, in the instant case, it may well be that a racially-oriented hiring system is more inconsistent with federal equal rights law than is the civil service system of hiring on the basis of merit. Section 703 of Title VII of the Civil Rights Act of 1964 specifically states that preferential treatment is not required on account of numerical or percentage imbalance. (Emphasis added). Chmill, et al. v. City of Pittsburgh, et al., Civil Action 76-537.
Under all of the above, it is difficult to perceive how the majority can argue that the Civil Service Commission was responding to a judicial mandate in imposing the quota system which the Federal Court itself had rejected.
The overriding question to be asked here is whether this Court is going to permit a Commission established by the legislature to “enact” rules contrary to those established by the legislature. If the Commission felt that a quota system was required to right past discriminatory wrongs, it would have been appropriate for the Commission to go back to Federal Court and seek a judicial determination based upon a record developed in open court. At least this procedure would have preserved the integrity of the statute while allowing the court to determine if the time had indeed arrived when the quota system was the only means left to correct the past discriminatory conduct. Of course, the Commission could have alternatively sought legislative changes which would have permitted the creation of the two certified lists.
*507Here, the Commission took neither of the above available courses of action and, instead, disregarded the very Act of the legislature under which it had been created. The legislative history of the Civil Service Act (53 P.S. § 23491 et seq. (1957) & Supp.1979), upon which the majority seems to rely, clearly establishes an intention on the part of the legislature to do away with political patronage in the hiring of fire fighters. Nowhere in this history is there any indication that the legislature sought to control every other evil faced by society. And, clearly, the Commission itself was not given any authority in the Act to remedy all of society’s ills on its own.
The majority attempts to support its argument that the Commission has the power to advance other state interests in addition to eliminating the patronage system, by pointing to Subsection (f) of § 23493.1 which allows the addition of 10 points to the score of every passing applicant who has been honorably discharged from the armed services. This is a self-defeating argument. It is self-defeating because it supports the inescapable conclusion that the Commission must be guided by its legislative creator as to what state interests it may advance. A consistent reading of the majority opinion would require a finding that the Civil Service Commission could independently decide that the time had come to eliminate the veteran’s preference points. And, yet, the majority does not openly suggest that the Commission does have this authority.
And, under the majority’s view, what other “state policy fully consistent with the civil service objectives” could the Commission now unilaterally invoke without prior legislative approval? Further, is it to be left to the Commission to decide what our “state policy” is? Should the Commission now be permitted to decide that the gay rights movement requires a state policy that a certain percentage of the fire bureau be gay? Should the Commission now be permitted to decide that the fire bureau be composed of 50% women? I believe that it is up to our elected officials in the legislature to determine “state policy”. The effects of a decision that *508an agency can go outside the bounds of the legislation which created it to determine policy would create a chaotic situation not apparently envisioned by the majority. Under the majority, all agencies could establish their own policies.
The majority relies on the assertion that all of the candidates who passed the Commission’s 1975 examination were equally qualified as fire fighters. This statement begs the question because the legislation creating the Commission called for applicants to the competitive class being appointed “only from the top of the competitive list.” In fact, there would be little use in creating a competitive list if the Commission were left to its whim in determining who from the entire list of successful applicants it would certify. The very purpose of the Act was to eliminate discrimination in hiring by requiring a mechanical certification from the top down according to the applicant’s score on the test. The majority would destroy this noble goal by once again giving to the employing agency the right to pick and choose who would be certified. In fact, the trial court found that the Civil Service Commission “violated the express terms of the Civil Service Act . . . original (appointments) must be made from the top of the list. The (Civil Service Commission’s) quota system deviates from this straight down the list approach in the Act. The purpose of the Civil Service Act was to guarantee that appointments would be made solely on the basis of merit, to obtain the best man or woman for the job.”
Finally, it is the opinion of this writer that the Supreme Court’s ruling in United Steelworkers of America v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979) is not relevant here because we are dealing with an agency created by the legislature which did not have the power or authority to invoke a unilateral quota system.
This Court should not lose sight of the statement made by the Federal Court in Glickman, supra, that a quota system is a “drastic remedy.” It is drastic because it attempts to correct previous wrongs by interfering with the rights of persons who were not involved in those wrongs. For this *509reason, if none other, the decision as to whether or not a quota system should be invoked should be made by those parties who have the constitutional and legal authority to make them. I, therefore, dissent and would affirm the Commonwealth Court’s decision.