Appeal from the Order of the Court of Common Pleas of Delaware County in case of Paul J. Coleman v. The Borough of Darby, Robert Deaver, Wilbur Smith, Edythe Michael, Margaret Griffith, Chester Thompson, Michael Meara, William Gibson, William Luke, Isabelle Ramseur, Councilmen of the Borough of Darby, Charles Sanders, Mayor of the Borough of Darby, and Russell Emery, No. 76-5207.
Peter J. Nolan, for appellants.
Thomas L. Kelly, for appellee.
Judges Wilkinson, Jr., Blatt and DiSalle, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.
[ 35 Pa. Commw. Page 176]
This action in mandamus comes before this Court following a decision of the Court of Common Pleas of Delaware County that the appellant Borough of Darby (Borough) should restore the appellee to the position
[ 35 Pa. Commw. Page 177]
of Superintendent of Police in the Borough. We affirm.
The Borough has a rather confusing nomenclature in its police system, due mainly to a poor choice of terminology in designating the various offices. Under the Darby Code, the head police officer in the Borough is designated the "Superintendent of Police." There is also a position on the force for a "Chief of Police," which is a subordinate position that would be roughly equivalent to the position of captain or lieutenant on most police forces.
Appellee was appointed Superintendent of Police on April 20, 1972. On November 9, 1972, as required by action of Borough on October 4, 1972, the appellee took a non-competitive civil service examination for this position, and thereafter was duly certified as Superintendent with civil service status and was so accepted by Borough. While there was a person occupying the position of Chief of Police at the time of appellee's appointment as Superintendent, this individual retired shortly thereafter and the position became vacant. It remained so until December 10, 1975, when appellee was appointed Chief of Police. This appointment followed appellee's request to take, and successful completion of, a non-competitive civil service examination.
On March 18, 1976, Borough Council adopted a resolution appointing one Russell Emery as Superintendent of Police. Appellee's salary was thereafter diminished, as were his duties and his responsibilities. Appellants seek to justify this action on the grounds that the appellee, by requesting the examination and taking the position of Chief of Police, vacated his Superintendent's position. We cannot agree.
In order to sustain their position, at the very minimum the appellants must demonstrate that appellee was properly installed ...