Appeal from order of Court of Common Pleas of Delaware County, No. 4058 of 1967, in case of John F. Gallagher v. Board of Commissioners of Springfield Township.
Joseph P. Mylotte and Stephen J. McEwen, Jr., with them McEwen & McEwen, for appellant.
Howard Saul Marcu, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Cohen concurs in the result. Mr. Justice Roberts concurs in the result on the ground that appellant had not yet been finally appointed.
Appellant John F. Gallagher sought a writ of mandamus to compel appellees, the Springfield Township Board of Commissioners, to permit him to serve in the position of Township patrolman to which he had been allegedly appointed. From the order entered below refusing to grant the writ, he brought the instant appeal.
The facts of this case, as found by the court below, are as follows: In February, 1966, appellant took, and passed, a competitive examination conducted by the Township Civil Service Commission to determine his qualifications for the position of township policeman. In April of that year, he was notified by the Township that his name was first on the list of eligible candidates, but during the remainder of 1966 he was found physically ineligible for appointment to the police force because of a wrist injury from which he had not fully recovered. The eligibility list on which appellant's name appeared was to expire on February 18, 1967, but, on February 12, 1967, the Township Public Safety Committee
met with appellant to discuss the possibility of his appointment prior to that date. At that meeting one of the members of the Public Safety Committee indicated to appellant that the Committee had doubts about his responsibility in driving public and private vehicles because of certain reports it had received concerning previous reckless driving. Nevertheless, the Committee recommended to the Board of Township Commissioners that he be appointed. On February 14, 1967, the Board passed a motion appointing appellant as a police officer. The following day he was issued a uniform, but not a badge, gun or identification card. He was scheduled to take the oath of office and commence his duties as a police officer on February 28, 1967, but for the reasons indicated below this has never occurred.
On February 22, 1967, appellant was involved in an automobile accident. The accident occurred as appellant, who was a lieutenant in the Springfield volunteer fire company, was driving toward the Township fire station in response to a fire alarm. Proceeding at a rate of speed in excess of the posted limit, appellant swerved to avoid two children crossing the street and struck a vehicle parked in a lot on the side of the street.
The following evening the Township Public Safety Committee and Civil Service Committee met in the presence of appellant to investigate the accident, and on February 24, 1967, appellant was informed that the Board of Commissioners had decided not to go through with his appointment. He thereafter brought this action to compel them to do so.
In addition to the facts set forth above, the court below found that at the time the Board of Commissioners voted to appoint appellant, no vacancy in fact existed on the police force and that the appointment was ...