Appeal from judgment of Court of Common Pleas of Bradford County, Sept. T., 1961, No. 175, in case of Andrew Bobick, Jr. v. E. J. Fitzgerald et al., council members of the Borough of Sayre.
George A. Spohrer, with him Maurice L. Epstein, and Hourigan, Kluger & Spohrer, for appellant.
Robert J. Landy, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Dissenting Opinion by Mr. Justice Musmanno. Mr. Justice Cohen and Mr. Justice Roberts join in this dissenting opinion.
John Fedorka, a police officer of the Borough of Sayre (Borough), resigned. Thereafter, on March 24, 1961, at the request of the borough council, the civil service commission offered a written examination to applicants for the position of police officer. Upon such examination the following applicants received the following grades: Andrew Bobick, Jr. (Bobick), 74; Emil Kozemko (Kozemko), 82; Richard Sheridan, 72 1/2. After adjustment of these scores to meet the
provisions of the veterans' preference Act of 1945,*fn1 Bobick, a veteran,*fn2 received a grade of 84, the highest grade of the three applicants.
The commission certified the names of Bobick, Kozemko and Sheridan to the borough council as eligible persons qualified for appointment and the police committee of the borough council, after interviewing the three applicants, recommended Bobick for appointment.
The borough council, on April 17, 1961, appointed Kozemko as police officer but, because the legality of such appointment was questioned, such appointment was made subject to the approval of the court. On May 1, 1961, the matter was reconsidered and the council reaffirmed the appointment of Kozemko.
Bobick filed an action in mandamus*fn3 in the Court of Common Pleas of Bradford County averring that Kozemko's appointment was illegal and that, as the only qualified person under the 1945 Act, supra, Bobick should have been appointed. The prayer of the complaint in mandamus is that the members of the borough council be commanded to appoint Bobick as a police officer of the Borough. The Borough and members of council did not deny the material allegations of the complaint.
Certain undisputed facts appear of record: (a) that, in view of the 1945 Act, Bobick's grade was the highest on the civil service examinations; (b) that, in view of the 1945 Act, Bobick was the only applicant entitled to appointment to the police force; (c) that the appointment of Kozemko, rather than Bobick, violated the 1945 Act; (d) that, at the time of Kozemko's appointment
and until the time of hearing, the vacancy on the police force had not been filled.
In view of the concessions of record, we need not consider the mandatory requirements of the 1945 Act. Two things are clear: (1) the appointment of Kozemko is contrary to law and (2) if any person is to be appointed, Bobick must be appointed.
The sole issue is whether a court, under the circumstances, has the power to direct the Borough to appoint Bobick.
The power to appoint a police officer in a borough arises under the authority of The Borough Code:*fn4 "Borough councils may, subject to the civil service provisions of this act, . . ., appoint . . . one or more suitable persons, ...