Appeal, No. 79, Jan. T., 1957, from order of Court of Common Pleas of Delaware County, Dec. T., 1957, No. 991, in case of Jacob J. Manning v. Civil Service Commission of the Borough of Millbourne. Order reversed; reargument refused January 8, 1957. Mandamus. Before DIGGINS, J., without a jury. Adjudication filed finding for plaintiff and directing hearing to be held; exceptions to adjudication dismissed and final order entered. Defendant appealed.
Alphonsus R. Romeika, with him Ione T. Romeika and Romeika, Fish & Scheckter, for appellant.
Howard Richard, with him Berman & Richard, for appellee.
Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE CHIDSEY
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, sitting
without a jury, entered a decree nisi ordering the defendant to grant a hearing to plaintiff. From the final order of the court en banc dismissing defendant's exceptions to the opinion and decree of the trial judge, defendant took this appeal.
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
; McGuckin v. West Homestead Borough, 360 Pa. 311, 62 A.2d 23; Scaccia v. Old Forge Borough, 373 Pa. 161, 94 A.2d 563. Plaintiff has no further claim to that office or the emoluments thereof, nor does he so contend. The only issue presented in this appeal is whether the attempted termination of his employment as a patrolman, without a hearing before the Civil Service Commission, is a valid and proper action in ...