Appeal from the Order of the Court of Common Pleas of Allegheny County in case of William L. Eckert v. Neil Buckley, Mayor; Carl R. Forster, Chester D. May, Frank A. Nedrow, Richard F. Moline, John E. Lovey, Olney J. Gray, John A. Marmarella, Members of Council; and the Borough of Aspinwall, No. 3374 July Term, 1974B.
Ronald P. Koerner, with him Gatz, Cohen, Segal & Koerner, for appellant.
Lee A. Donaldson, Jr., with him Donaldson, Donaldson & Gunst, for appellees.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Kramer.
This is an appeal by William L. Eckert from an order of the Court of Common Pleas of Allegheny County, dated October 21, 1974, which sustained the preliminary objection of the Borough of Aspinwall to Eckert's complaint in mandamus. The complaint requested that the court order the Borough to promote Eckert to lieutenant of police, with back pay and fringe benefits. The preliminary objection was in the nature of a demurrer, alleging that Eckert had not pleaded a cause of action in mandamus. The only issue raised by this appeal is whether, under Sections 1184 and 1188 of the Borough Code, Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. §§ 46184, 46188, the Borough has a clear legal duty to promote Eckert to lieutenant. We conclude that it does not, and affirm.
At some time prior to May 19, 1973, the Borough Council notified the Civil Service Commission that it intended to promote a police officer to fill a lieutenant vacancy. After conducting an examination, the Commission, on June 7, 1973, certified Eckert and Chester N.
Friedman as the only two officers eligible for the promotion. Council appointed Friedman to the position. The Commission subsequently notified Council that it had erred in evaluating the examination scores and that Friedman was in fact not eligible for promotion. On March 8, 1974, Friedman, by letter, declined to accept Council's appointment; and Eckert requested that Council appoint him to the position. Council refused, and this action followed.
Relief in mandamus cannot be granted unless the plaintiff can show a clear legal right, and a correspondingly clear legal duty on the part of the defendant. Burlington Homes, Inc. v. Kassab, 17 Pa. Commonwealth Ct. 329, 332 A.2d 575 (1975). Eckert argues that the following language in Section 1184 establishes the requisite duty:
"The council shall . . . with sole reference to the merits and fitness of the candidates, make an appointment from the three names certified, unless they make objections to the commission as to one or more of the persons so certified for any of the reasons stated in section 1183 of this act."
Eckert maintains that because he was the only officer eligible for the promotion, he has a right to be appointed. In essence, Eckert would have us hold that once the Council notifies the Commission of its intention to fill a vacancy, it must fill the vacancy with someone from the eligibility list.
The Borough does not question the fact that, consistent with the statute, if anyone is to be appointed lieutenant from that list, that person must be Eckert. The Borough does, however, insist that Council has the discretion to allow the position to remain vacant, ...