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JAMES O'NEILL v. BOROUGH YARDLEY YARDLEY BOROUGH COUNCIL AND YARDLEY BOROUGH CIVIL SERVICE COMMISSION (10/16/89)

filed: October 16, 1989.

JAMES O'NEILL, JR., APPELLANT
v.
BOROUGH OF YARDLEY; YARDLEY BOROUGH COUNCIL AND YARDLEY BOROUGH CIVIL SERVICE COMMISSION, APPELLEES



Appeal from Common Pleas Court, Bucks County, Honorable Edward Biester, Jr., Judge.

COUNSEL

Theodore M. Kravitz, Esq., Joseph J. O'Neill, Esq., Washington Crossing, Pennsylvania, for Appellant.

Laurence I. Tomar, Esq. Washington, Crossing, Pennsylvania, for Appellee.

Before: Honorable Francis A. Barry, Judge, Honorable Doris A. Smith, Judge, Honorable Alexander F. Barbieri, Senior Judge

Author: Barry

[ 129 Pa. Commw. Page 271]

OPINION

Opinion BY JUDGE FRANCIS A. BARRY

Appellant, James O'Neill, applied for the position of chief of police of the Borough of Yardley, the appellee. O'Neill is currently a sergeant with the Yardley police force. O'Neill was interviewed by the borough's civil service commission, which issued a letter approving his elevation of chief of police. Subsequently, the borough council refused to appoint O'Neill to the position. O'Neill brought an action in mandamus in the Court of Common Pleas of Bucks County to compel the borough to appoint him as chief of police. The trial court sustained the borough's preliminary objections in the nature of a demurrer and this appeal followed.

Mandamus lies only where the plaintiff has a clear legal right to relief and the defendant has a corresponding

[ 129 Pa. Commw. Page 272]

    duty. Eckert v. Buckley, 23 Pa. Commonwealth Ct. 82, 350 A.2d 417 (1976). The only issue before us in this case is whether the borough is required under The Borough Code*fn1 to appoint someone as chief of police after he has been approved by the civil service commission.

This case hinges on subsection (c) of the Section 1184 of the Code, 53 P.S. ยง 46184(c), which reads:

In the case of a vacancy in the office of chief of police. . . the appointive power may nominate a person to the commission. It shall thereupon become the duty of the commission to subject such person to a non-competitive examination, and if such person shall be certified by the commission as qualified, he may then be appointed to ...


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