84 Pa. Commw. 399 | Pa. Commw. Ct. | 1984
Lead Opinion
Opinion by
Before this Court is an appeal by the Borough of Monaca and the Civil Service Commission of the Borough of Monaca from a decision and order of the Court of Common Pleas of Beaver County granting a writ of mandamus to Lalli Kalervo and directing that he be reinstated to his former position with the Borough Police Department. The matter has come to us following the common pleas court’s en banc dismissal of exceptions to the trial judge’s decree nisi.
This Court’s scope of review of matters such as this requires that we affirm the trial court unless there has been an abuse of discretion or an error of law. West Penn Power Co. v. Board of Property Assessment, Appeals and Review of Allegheny County, 80 Pa. Commonwealth Ct. 378, 471 A.2d 1285 (1984). After a careful review of the record in this matter we find neither an abuse of discretion nor any error of law by the trial court. Accordingly we affirm on the basis of the well-reasoned opinion of the Honorable Robert E. Kunselman in Kalervo v. Borough of Monaca, Pa. D. & C. 3d (1981). We do so with the additional note that, with regard to the issue of laches, the action of the Borough, in adopting its budget without providing for the position of the appellee, which the Borough categorizes as operating to its prejudice should this suit be permitted, occurred on December
Order
Now, August 9,1984, the decision and order of the Court of Common Pleas of Beaver County in the above captioned matter, No. 434 of 1981, is hereby affirmed.
Dissenting Opinion
Dissenting Opinion by
I respectfully dissent.
Contrary to the majority’s view, I do not believe that Appellee exercised “due diligence” in asserting
I cannot agree with the trial court’s conclusion that the Borough failed to demonstrate prejudice. The record shows that the Borough eliminated the position of captain from its police department at which time Appellee’s'attorney had made only one inquiry into whether the matter could be settled and had not sought to obtain relief with the Commission. The record also shows that both parties stipulated to the fact that the Borough failed to include any appropriations for the position of captain in the police department’s budget for 1981.
• Thus, it is my view that the record demonstrates that-the Borough was both financially and adminis