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JOHN JOSEPH GRABNER v. JOHN ANTOLINE (04/04/86)

decided: April 4, 1986.

JOHN JOSEPH GRABNER, III, APPELLANT
v.
JOHN ANTOLINE, MAYOR OF THE BOROUGH OF MONACA ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Beaver County in the case of John Joseph Grabner, III v. John Antoline, Mayor of the Borough of Monaca, and Barbara Roeder, Paul Pico, Orrie Simpson, John Petures, Oresto Petrella, Fred Muler, Ronald Groves, John Keefe, Edward Mickey, and Albert Cianfarano, Members of the Monaca Borough Council, No. 266 of 1984.

COUNSEL

Allen N. Brunwasser, for appellant.

Richard Urick, Duplaga, Tocci, Palmieri, McMillen & Urick, for appellees.

Judges Craig and MacPhail, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 96 Pa. Commw. Page 252]

Appellant John Grabner, III, appeals from an order of the Court of Common Pleas of Beaver County dismissing his suit in mandamus to compel the mayor of the Borough of Monaca and the members of its council to institute disciplinary proceedings against the Monaca Chief of Police. The Superior Court, sua sponte, transferred the appeal of that order to this court by order dated April 12, 1985.

The appellant's complaint alleged that the chief of police had engaged in conduct unbecoming an officer. Specifically, the complaint alleged numerous incidents of assaultive behavior toward the appellant's wife and allegations of interfering with their marital relationship.

[ 96 Pa. Commw. Page 253]

The mayor and council filed preliminary objections in the nature of a demurrer stating that the complaint failed to set forth a cause of action. The judge sustained those preliminary objections and dismissed the suit. We follow the reasoning of the memorandum opinion of Judge Robert C. Reed and affirm the order.

A writ of mandamus is designed to compel the performance of a ministerial act or legal duty where there exists a clear legal right in the plaintiff, a corresponding duty in the defendant, and a lack of an adequate remedy at law. A court cannot grant a writ of mandamus to compel discretionary acts. Bronson v. Board of Probation and Parole, 491 Pa. 549, 554, 421 A.2d 1021, 1023 (1980). As Judge Reed stated:

The determinative issue in this case is whether the institution of disciplinary proceedings by the defendants against the Borough Chief of Police, is a discretionary or mandatory duty.

The supervision of borough police personnel matters is provided in 53 P.S. ยง 46121, which states in pertinent part:

Borough council may, subject to the civil service provisions of this act, . . . appoint and remove, or suspend, or reduce in rank, one or more suitable persons . . . ...


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