Appeal, No. 207, Jan. T., 1960, from judgment of Court of Common Pleas of Delaware County, Sept. T., 1958, No. 906, in case of Jacob J. Manning v. Borough of Millbourne. Judgment affirmed.
Howard Richard, with him Berman, Richard & Brian, for appellant.
Stephen J. McEwen, Jr., with him McEwen and McEwen, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE EAGEN
This is an appeal from the judgment in an action of mandamus instituted in the court below by appellant, Jacob Manning, in which he seeks reinstatement to the office of chief of police of the Borough of Millbourne with pay for the period beginning February 1, 1954.Essential to a clear understanding of the issues presently confronting us is a brief expedition into the historical settings of Manning v. Millbourne Borough Civil Service Commission, 387 Pa. 176, 127 A.2d 599 (1956).
Jacob Manning was appointed chief of police on January 3, 1951. He continued in that office until February 1, 1954, on which date the position was abolished by ordinance. Thereafter and until December 6, 1954, appellant served as a patrolman on the force. At that time he was dismissed for neglect of duty and conduct unbecoming an officer. From this dismissal he appealed to the civil service commission of the borough but was refused a hearing because his appointment as patrolman was not in conformance with civil service requirements. He then instituted an action of
mandamus in the Court of Common Pleas of Delaware County wherein he sought an order from that court to the commission directing a hearing. This order was granted and the commission appealed to this Court for reversal. We held in Manning v. Millbourne Borough Civil Service Commission, supra, that patrolman Manning was not entitled to a hearing before the commission because he had never enjoyed civil service status as a patrolman. That decision was handed down on November 27, 1956. When, on January 1, 1957 (just one month short of three years after the elimination of the office of chief of police) the borough council officially created the office of "captain of police" and appointed Nicholas Mamallis to the post, appellant Manning became confirmed in his suspicions that the office of chief had been abolished in bad faith and that he had been illegally removed therefrom. Accordingly, this action was instituted and the lower court ruled that he was not validly appointed chief of police and that he had not proved his allegations of bad faith on the part of council in eliminating the office which he had held. Hence, this appeal.
Presented here and determined below was the issue of whether or not appellant had civil service status as chief of police. This question was not decided in the first Manning appeal, nor was it there raised. In that case, this Court said, p. 182: "A careful reading of the record leaves grave doubt as to whether the plaintiff was ever legally appointed as chief of police in accordance with § 1178. But be that as it may, the issue here is whether Manning was validly employed as a patrolman."*fn1 In the instant case, the lower court relied on the following quotation from our opinion in the earlier appeal: "Strict compliance with the civil service laws
is necessary; substantial compliance is not enough: (citing cases)." This reliance was directed to the lower court's determination of whether Manning was ever properly certified by the commission as chief.*fn2 The court below held that he was not so certified and based this conclusion on testimony of one Charles Adler, who was chairman of the civil service commission when Manning was appointed. Adler, on cross-examination, was asked, "How did you certify him?" and answered, "By word." The lower court then held this not to have constituted strict compliance with the civil service laws. Said the court: "This (certification by word) would rebut the presumption relied upon by this court in the earlier case that under the well-established principle of law there is a strong presumption that a public body is properly performing its functions and has taken all necessary steps to give validity to its official acts. It must be assumed, therefore, that the borough officials did not receive proper certification of Jacob J. Manning to the position of police chief and therefore he is not now entitled to civil service status ...." Aside from the curious ...