387 Pa. 176 | Pa. | 1956
Lead Opinion
Opinion by
This is a proceeding in mandamus by the plaintiff, Jacob J. Manning, to compel the defendant Civil Service Commission of the Borough of Millbourne, to grant him a hearing regarding his discharge from the position as patrolman on the borough police force for reasons that he felt were not valid. The court below, sit
The plaintiff was appointed chief of police of the borough by its council at a council meeting on January 3, 1951 at an annual salary of $3,600. This was plaintiff’s first employment on the borough police force, he never having served the borough as a patrolman previous to being sworn in as chief of police. In September, 1951, the borough council passed an ordinance relating to the police department whereby the plaintiff was again designated as chief of police at the same salary and four other individuals were appointed as patrolmen at a salary of $3,000 per annum. Plaintiff performed the duties of chief of police from January, 1951, until February, 1954, at which time the office of chief of police was abolished, the police force reduced to a total of four patrolmen, and plaintiff became a patrolman. Plaintiff performed the duties of patrolman until December, 1954, when, at a regular meeting of the borough council, he was dismissed from the Millbourne police force on charges preferred by a fellow policeman. It was from that dismissal that he requested a hearing before the Civil Service Commission which was denied on the ground that he had no civil service status.
Plaintiff does not contend that in abolishing the office of chief of police the council of the borough was activated by any improper motive. It is well settled that the borough council had the right, acting in good faith, to discontinue the office of chief of police: Carey v. Altoona et al., 339 Pa. 541, 16 A. 2d 1; Simasek et al. v. McAdoo Borough, et al., 352 Pa. 306, 42 A. 2d
Plaintiff, having the affirmative of the issue, the burden was on him to show that he had title de jure to the position of patrolman. This necessitated proof that he had been appointed in compliance with the applicable civil service law: Detoro v. Pittston et al., 344 Pa. 254, 25 A. 2d 299; Healey v. Jones et al., 152 Pa. Superior Ct. 18, 30 A. 2d 732; Saar v. Hanlon et al., 163 Pa. Superior Ct. 143, 60 A. 2d 432. Strict compliance with the civil service laws is necessary; substantial compliance is not enough: McCartney v. Johnston et al., 326 Pa. 442, 191 A. 121; Detoro v. Pittston et al., 351 Pa. 178, 40 A. 2d 486.
The Act of July 10, 1947, P. L. 1621, 53 PS §12221 et seq., known as The Borough Code, added subdivision (j), Civil Service for Police and Firemen, to the Act of May 4, 1927, P. L. 519. Article XI, §1178 of The Borough Code, as amended in a manner not here ma
“In the case of a vacancy in the office of chief of police or chief of the fire department, or equivalent official, the appointive power may nominate a person to the commission. It shall thereupon become the duty of the commission to subject such person to a noncompetitive examination, and if such person shall be certified by the commission as qualified, he may then be appointed to such position, and thereafter shall be subject to all the provisions of this act.”.
The order is reversed.
“If the person . . . removed . . . shall demand a hearing by the commission, the demand shall be made to the commission. Such person may make written answers to any charges filed against him not later than the day fixed for hearing. The commission shall grant him a hearing which shall be held within a period of ten days from the filing of charges in writing, unless continued by the commission for cause at the request of the council or the accused. At any such hearing, the person against whom the charges are made may be present in person and by counsel. . . .”.
Dissenting Opinion
Dissenting Opinion by
The Chancellor found the following facts, based upon clear, unequivocal and uncontradicted evidence: Jacob J. Manning was appointed Chief of Police by Borough Council on January 3, 1951, after and pursuant to the Civil Service Commission’s recommendation and certification of Manning to Borough Council for the office of Chief of Police. This recommendation and certification were made by the Civil Service Commission after a lengthy examination of Manning by the Chairman of the Commission who was duly authorized to do so by the Commission. Manning served until March 1, 1954, a period of over three years. The office of Chief of Police was then abolished and Manning was reduced to the rank of patrolman, in which rank he continued to serve until December 6, 1954, when he was dismissed summarily and without hearing. All that Manning asks is a hearing to which he is entitled under the Civil Service Law which had governed Millbourne Borough since 1947.
The present Civil Service Commission, the person* nel of which was changed after March 1, 1954, alleged that Manning does not have civil servi.ce status and is
The decision of the majority of this Court is based on a technicality which ivas not presented or argued or even thought of by appellant (the present Civil Service Commission). The decision not only works a great injustice upon Manning, but is also contrary to the spirit and intent of Civil Service Law and I believe to the letter of the law.
I would affirm the Order of the Court below on the able opinion of Judge Diggins.