Appeal from the Order of the Court of Common Pleas of Delaware County in the case of Joseph A. Charley v. Jack Felzer, Robert Duray and Edwin Conroy, all known as Upper Darby Township Civil Service Commission, No. 76-9719, in Mandamus.
John G. McDougall, for appellant.
Carmen P. Belefonte, Kassab, Cherry, Curran & Archbold, for appellees.
President Judge Crumlish and Judges Craig and Williams, Jr., sitting as a panel of three. Opinion by President Judge Crumlish. Judge Wilkinson, Jr. did not participate in the decision in this case.
[ 59 Pa. Commw. Page 151]
Joseph A. Charley filed a complaint in mandamus seeking to compel the Upper Darby Township Civil Service Commission (Township Civil Service Commission) to give him a hearing into the causes of his alleged demotion from the rank of Superintendent of Police to Lieutenant.
[ 59 Pa. Commw. Page 152]
The complaint was dismissed by the Delaware County Common Pleas Court. We reverse.
On July 17, 1973, the Upper Darby Township Board of Commissioners (Board of Commissioners) nominated Charley, then a lieutenant, to be Superintendent of Police and wanted him to take the civil service examination. The Township Civil Service Commission, in a letter of July 23, 1973, informed the Commissioners that it "examined" Charley on the 20th and it "passed him unanimously as qualified to fill the vacancy of Superintendent of Police." By resolution, on July 25, 1973, the Board appointed Charley Superintendent of Police. In January, 1974 the Commissioners reappointed him.
In January, 1975, the Township adopted a Home Rule Charter providing for a mayor and 11-member Council. By virtue of Article VIII, Section 803 of the Home Rule Charter, department heads are appointed by the mayor with the approval of six members of the Council. Department heads serve under the supervision and control of the mayor and may be discharged by the mayor with the approval of the Council.*fn1
In January, 1976, Council approved the mayor's acting reappointment of all sitting department heads. On June 1, 1976, the mayor replaced Acting Superintendent Charley. He requested a hearing before the Civil Service Commission; the request was denied. He then filed his action in mandamus. In dismissing the mandamus action and his exceptions to the complaint, the common pleas court concluded that his
[ 59 Pa. Commw. Page 153]
appointment to Superintendent of Police was not covered by the regulations of the Civil Service Commission. Subsequently, the court of common pleas also dismissed his exceptions to ...