Appeal from order of Court of Common Pleas of Allegheny County, July T., 1963, No. 1085, in case of John Salopek and Borough of White Oak v. Fred B. Alberts, Mayor of White Oak Borough.
Harry Alan Sherman, for appellant.
Clarence H. Clasper, for borough, appellee.
T. Robert Brennan, for appellee.
Samuel Strauss, for amicus curiae.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Chief Justice Bell and Mr. Justice Musmanno dissent.
This appeal arises in a mandamus action instituted by the chief of police of a borough to compel the mayor
of such borough to assign to him the duties of chief of police.*fn1
In 1953 John Salopek was appointed a full time police officer of White Oak Borough (Borough), Allegheny County. On January 24, 1958, Salopek was regularly appointed by the borough council as chief of police of the Borough and, until January 1, 1962, did perform the duties of the chief of police of the Borough's five man police force. Beginning January 1, 1962, Fred B. Alberts (Alberts), the mayor of the Borough, assigned Salopek to a patrolman's duties, and, during January, February and March 1962, he was assigned to a beat which required him to walk from midnight to 8:00 a.m. in a sparsely settled rural area and from April 1962 until the date of hearing in the court below Salopek was assigned to patrol duty by motor vehicle from 4 p.m. to midnight. On January 15, 1962, the borough council appointed Salopek to perform, in addition to his duties as chief of police, the duties of street commissioner.*fn2
Beginning on January 22, 1962, and continuing each month thereafter until April 17, 1962, Alberts on sixteen occasions suspended Salopek, without pay, until the next regular meeting of council, apparently*fn3 for identical reasons, i.e., Salopek's failure to perform the duties of a patrolman assigned to him by Alberts. Beginning on February 19, ...