Appeal from order of Court of Common Pleas of Butler County, Dec. T., 1966, No. 9, in case of Vincent Balsinger v. Borough of Zelienople.
William C. Robinson, with him Henninger & Robinson, for appellant.
John L. Wilson, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno.
On November 8, 1965 Vincent Balsinger was nominated by Council of the Borough of Zelienople as the
borough's chief of police, his duties to commence on November 15, 1965. The police civil service commission on November 16, 1965 certified that Balsinger was qualified for the appointment, the certification being received by the borough secretary on December 6, 1965.
On December 13, 1965 the borough council appointed Balsinger chief of police for a probationary period of six months beginning December 13, 1965. On June 13, 1965, this being the end of the probationary period, the borough council, at a regularly scheduled meeting attended by Balsinger, voted down, by a vote of 4 to 3, a motion to approve his permanent appointment as police chief. They approved, however, a motion to extend his probationary period for another six months. After the voting Balsinger directed some remarks to council, the exact tenor of which is in dispute. The secretary's minutes of the meeting indicate he stated he resigned. Balsinger says he said he refused to accept another probationary period and that, as far as he was concerned, the six-months "terminates tonight".
In spite of his declared refusal to remain on any probationary status, Balsinger continued to perform the services of police chief. On June 24, the borough council reconvened and authorized the following communication, which was delivered to Balsinger: "By formal action of the Council of Zelienople Borough, in special meeting June 24, 1966, I was directed to notify you that you will not receive a permanent appointment as a police officer for Zelienople Borough and that your probationary appointment ceased as of June 13, 1966."
The borough also authorized payment of wages to Balsinger for the period from June 13 to June 27, provided he would agree in writing that "such payment shall not be construed in fact or law to be an admission
on the part of the Borough of Zelienople that Vincent Balsinger was recognized or appointed by the ...