Appeal from the Order of the Court of Common Pleas of Allegheny County, in case of Waleigh C. Rasmussen v. The Borough of Aspinwall, a municipal corporation, No. SA 1575 -- 1984.
John A. Bacharach, Girman & Bacharach, for appellant.
Robert L. Byer, with him, Laura A. Candris, Eckert, Seamans, Cherin & Mellott, for appellee.
Judges MacPhail, Doyle and Barry, sitting as a panel of three. Opinion by Judge Doyle.
[ 103 Pa. Commw. Page 110]
This is the appeal of Waleigh C. Rasmussen from an Order of the Court of Common Pleas of Allegheny County denying Rasmussen's motion for summary judgment and granting summary judgment in favor of the Borough of Aspinwall (Borough).
Rasmussen, an honorably discharged veteran, applied to the Civil Service Commission of the Borough (Commission) for the position of Patrolman Third Class with the Aspinwall Police Department. He sat for the examination and was notified on January 23, 1984 that he had attained the highest score of all the applicants after he received the 10 point veterans credit*fn1 and that pursuant to Section 1184 of The Borough Code (Code),*fn2 the Commission had certified his name and the names of the two other applicants with the second and third highest scores to the Borough Council for selection.
On June 26, 1984, the Borough Council interviewed Rasmussen and the two other applicants. By letter dated July 9, 1984, Rasmussen was informed that he was not the successful candidate. Rasmussen notified the
[ 103 Pa. Commw. Page 111]
Commission of his intention to appeal and requested a hearing. Borough Council granted Rasmussen's request for a hearing but subsequently reaffirmed its decision to hire one of the other applicants, a non-veteran.
On November 26, 1984, Rasmussen filed an appeal with the Court of Common Pleas of Allegheny County, contending that the Borough Council should have appointed him to the position of Patrolman Third Class because of the mandate of Section 7104(b) of the Veterans' Preference Act, (Act) 51 Pa. C.S. § 7104(b) which reads:
Whenever any soldier possesses the requisite qualifications, and his name appears on any eligible . . . list, certified . . . as the result of any such civil service examination, the appointing . . . power in making an appointment . . . to a public position shall give preference to such soldier, notwithstanding, that his name does not stand highest on the eligible . . . list. (Emphasis added.)
The Borough countered with the argument that the Veterans' Preference Act does not compel the Borough Council to appoint a veteran and that it has discretion to appoint any of the three applicants certified to it by the Commission pursuant to ...