Appeals, Nos. 205 and 206, Jan. T., 1960, from judgments of Court of Common Pleas of Delaware County, Dec. T., 1958, Nos. 2278 and 2277, in cases of Nicholas Mamallis v. Borough of Millbourne, and Same v. Civil Service Commission of Borough of Millbourne. Judgment affirmed in No. 205; appeal dismissed in No. 206.
Howard Richard, with him Berman, Richard & Brian, for appellant.
Stephen J. McEwen, Jr., with him McEwen and McEwen, for appellees.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE EAGEN
This involves two interrelated mandamus actions tried in the court below without a jury. From judgments in favor of the defendants, there appeals are prosecuted.
At some time (the exact date not appearing of record) in December 1955, Nicholas Mamallis, plaintiff-appellant in each of these consolidated appeals, was appointed "acting captain" of the police force of the Borough of Millbourne. He continued in that capacity until the spring of 1957, at which time he was officially sworn in as "captain." As captain, he received an annual salary of $5200. Patrolmen on the same force were paid $4500 yearly.
On November 5, 1958, Captain Mamallis entered a hospital for treatment. After a brief convalescence, he returned to work on November 28, 1958. He testified, on the trial of this action below, that on the day before he entered the hospital and just a half-hour before
he officially went on duty, he was met by Burgess Simone who demanded that Mamallis surrender cabinet keys, control of which had been his by virtue of his office as captain, and who also told Mamallis that thenceforward he was to be captain in name and pay only. In effect, Mamallis was, allegedly, on that day informed that he would no longer perform the duties of his office.
Subsequent to his return to duty on November 28, 1958, Mamallis was placed by the burgess on the twelve-midnight to eight a.m. shift and was kept thereon permanently and this shift did not thereafter become subject to rotation, as it had under the system previously followed. This situation persisted, unchanged, until February 16, 1959, on which date the borough council passed an ordinance which abolished the offices of captain and sergeant of police. Appellant has not been discharged from the force but has been on a self-created "leave of absence" since the passage by the borough council of the aforementioned ordinance. He does not herein complain of his having been placed on the night shift but apparently presents that fact solely for the purpose of its tendency to show that the later abolition of the captaincy by council was another milestone along the road of personal reprisal. His qualifications, integrity and ability to serve on the force were never questioned, the borough alleging that the office was abolished, not as a reprisal but, solely for reasons of harmony and economy.
In these actions, he sought a hearing before the civil service commission of the Borough of Millbourne pursuant to the Act of May 4, 1927, P.L. 519, Art. XI, § 1185, as amended, 53 PS § 46185, and further demands reinstatement to the eliminated office with back pay to the date of its abolition. ...