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KEVIN C. MCCARTHY v. ERNEST E. MIZE ET AL. (08/15/84)

decided: August 15, 1984.

KEVIN C. MCCARTHY, APPELLANT
v.
ERNEST E. MIZE ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Chester County in the case of Kevin C. McCarthy v. Ernest E. Mize et al., No. 30 Equity 1981.

COUNSEL

Justin J. McCarthy, Wusinich and McCarthy, for appellant.

Anthony L. V. Picciotti, with him, Carole J. Wildoner, for appellees, Borough of Kennett Square and Councilmen thereof.

John S. Halsted, for appellees, Borough of Kennett Square Civil Service Commission and Commissioners thereof.

Judges Rogers, Craig and Barbieri, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 84 Pa. Commw. Page 512]

Kevin McCarthy, a taxpayer of the Borough of Kennett Square seeking to represent all other taxpayers, appeals from a Chester County Common Pleas Court order denying his petition for class action certification.

We must decide if the common pleas court abused its discretion*fn1 by determining that Mr. McCarthy's petition failed to satisfy the following prerequisites for certification under Pa. R.C.P. No. 1702: (1) commonality, (2) typicality, (3) adequacy of representation, and (4) fairness and efficiency. Although we have determined that the court erred in concluding that Mr. McCarthy's allegations do not raise questions of law or fact common to the class which he purports to represent and are not typical of the class claims, we

[ 84 Pa. Commw. Page 513]

    affirm because the court also properly concluded that a class action will not provide an efficient method for adjudicating this controversy.*fn2

We trace the history of this case to 1980, when, by letter of June 19, the borough, which regarded Mr. McCarthy's position with the police force as that of a part-time patrolman, terminated that employment, and also rejected his various applications by which he sought to confirm or obtain one of four positions as full-time patrolman; the council instead appointed Ernest Mize, Harvey Edmundson, and two others to those four positions.

Initially, in 1980, Mr. McCarthy filed a complaint in mandamus and equity. In the mandamus count, he alleged that he had already attained patrolman's status and was entitled, therefore, to a letter of written charges and a hearing or reinstatement. In the equity count, Mr. McCarthy alleged that the borough's civil service commission failed to follow its internal interviewing procedures, as outlined in its rules and regulations, and that the borough's council, in appointing other patrolmen, disregarded section 1184 of The Borough Code,*fn3 which mandates the appointment of policemen "with sole reference to the[ir] merits and fitness. . . ."*fn4 He sought an order ...


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