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CIACCIO v. BOROUGH NORRISTOWN (03/08/72)

decided: March 8, 1972.

CIACCIO
v.
BOROUGH OF NORRISTOWN



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Frank G. Ciaccio v. Borough of Norristown, No. 69-17293.

COUNSEL

Paul C. Vangrossi, for appellant.

Stephen G. Yusem, with him High, Swartz, Roberts & Seidel, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson.

Author: Wilkinson

[ 4 Pa. Commw. Page 561]

This is an appeal from the Order of the Court of Common Pleas of Montgomery County declaring the appointments of three police lieutenants null and void

[ 4 Pa. Commw. Page 562]

    and directing the Civil Service Commission of the Borough of Norristown to initiate anew the requisite procedures to fill the three vacancies. We must affirm.

In October of 1969, the Norristown Borough Council notified the Civil Service Commission of three vacancies in the Borough Police Department for the position of Lieutenant of Police. The Commission, as far as we can determine from the record, proceeded in good faith to solicit applications, to test all the applicants, and to certify those found qualified. However, regardless of their good faith and the presumption that as public officials they performed their duties with the proper procedure and exercise of good judgment, nevertheless, their own testimony, again apparently given frankly and candidly, establish that they did not meet the minimum requirements of their own Rules and Regulations. "It is true that honesty of purpose and good faith in the performance of acts in their official capacity will be assumed by the courts on the part of persons holding responsible public positions, until the contrary clearly appears . . ., but manifestly this principle cannot aid appellants' case, for no amount of good faith and honesty of purpose on the part of the [civil service] commissioners can render effective action which is abortive for failure to comply with the mandatory requirements of the law governing such action. Appellants were either ignorant of the relevant requirements of the civil service law or deliberately omitted to act in conformity therewith and in such cases no presumptions will be indulged in as to the propriety of their conduct: Campbell v. Bellevue Borough School District, 328 Pa. 197, 202, and cases there cited." Hill v. Alexander et al., 338 Pa. 26, 32, 11 A.2d 884 (1940).

Many errors were made by the Civil Service Commission, none of which are condoned but most of which had no direct adverse effect on the appellee or the other

[ 4 Pa. Commw. Page 563]

    applicants. For example, there can be no justification for not correctly marking the written examination papers where it is a multiple choice test. However, the errors made, when corrected, did not change the standing. The notice of the examination was not advertised as it should have been, but all persons who were eligible had actual notice. Some of the members of the Commission had not taken their oaths of office and the lower court's order properly directs this be done. Nevertheless, they were de facto Commissioners and their proper actions would have been effective.

Without pointing out all the errors as ably set forth in appellee's brief, and in many instances properly minimized in appellant's brief, there are at least three fundamental errors that require ...


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