Appeal, No. 40, Jan. T., 1960, from judgment of Court of Common Pleas of Delaware County, March T., 1957, No. 1206, in case of Edwin Carver v. Civil Service Commission of Upper Darby et al. Judgment affirmed.
Angelo A. DiPasqua, for appellant.
Paul R. Sand, Solicitor, for township, appellees.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Eagen, JJ.
OPINION BY MR. CHIEF JUSTICE JONES.
The action here involved was originally instituted in assumpsit but was later amended so as to be an action in mandamus. The plaintiff sought thereby to compel the Commissioners of Upper Darby Township to declare (1) that the late appointment of a candidate (certified by the Civil Service Commission) to the position of sergeant of police to fill a vacancy in that office was invalid, (2) that the vacancy was still open, and (3) that a new examination would be given eligible candidates for the rank of sergeant (of whom the plaintiff was one) wherein the sole test would be a
written examination. The tests formerly given had been partly written and partly oral.
The case was tried to the court without a jury by agreement of counsel. The court filed an adjudication containing findings of fact, followed by conclusions of law, that "plaintiff has not shown his right to be appointed sergeant in the police force of Upper Darby Township" and that "although the plaintiff passed his civil service examination for the position of sergeant, the Commissioners of Upper Darby were not compelled by law to appoint him." The court accordingly entered a verdict for the defendant Commissioners in an order which allowed for the filing of exceptions to the adjudication and verdict, which were duly filed by the plaintiff. The matter then came before the court en banc which sustained an exception to an immaterial statement of fact but dismissed all other of the plaintiff's exceptions. Judgment on the verdict for the defendants was entered from which the plaintiff has appealed.
The following excerpts from the opinion of Judge SWENEY for the court en banc justify the judgment:
"In August, 1956, there were three vacancies in the rank of Sergeant of Police for the Township of Upper Darby. A Civil Service Examination was given, and the three vacancies were filled by the candidates who placed first, second and third in the examination. Plaintiff also a candidate for the rank of Sergeant, placed fourth. In February, 1957, there was another vacancy in the rank of Sergeant and the Civil Service Commission submitted the names of these applicants who had placed fourth, fifth and sixth in the same examination from which the first three vacancies had been ...