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

COMMONWEALTH COURT OF PENNSYLVANIA


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. § 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 such position, and thereafter shall be subject to all the provisions of this subdivision.

O'Neill argues that the appointment is mandatory if the civil service commission has approved the candidate and that he can therefore compel his appointment through mandamus. The borough's position is that it may choose not to appoint a candidate after he has been approved by the commission because of the use of the word "may" in the phrase "may then be appointed" in the above quoted section.

O'Neill cites several cases which hold that "may" can mean "shall" where a statute directs the doing of a thing for the sake of justice, Melnick v. Melnick, 147 Pa. Superior Ct. 564, 25 A.2d 111 (1942), or where the purpose achieved by a statute is a public one and by it power is given to public officers which affects the rights of third persons. In re Fisher, 344 Pa. 96, 23 A.2d 878 (1942). However, the most recent Pennsylvania Supreme Court case addressing this specific question states that "may" is ordinarily employed in the permissive sense and held that statutory language using "may" granted discretion. Commonwealth v. Garland, 393 Pa. 45, 142 A.2d 14 (1958). Our own Court has dealt with this question more recently in In the Matter

[ 129 Pa. Commw. Page 273]

As each subsequent vacancy occurs in the same or another position precisely the same procedure shall be followed.

As the borough points out in its brief, the legislature consistently used "shall" throughout this subsection and we note that the legislature also stated emphatically that this procedure must be followed when appointing police officers. In contrast, the legislature used by "may" and "shall" in subsection (c) which indicates to us that it was conscious of the distinct meaning of each word.

In summary, we hold that Section 1184(c), 53 P.S. § 46184(c) does not require the borough to appoint O'Neill, even though he has been approved by the civil service commission. O'Neill therefore has no clear legal right to relief and the trial court properly sustained the borough's preliminary objections.

Order

NOW, October 16, 1989, the order of the Court of Common Pleas of Bucks County, dated January 20, 1989, at Docket No. 88-6850-14-5, is affirmed.


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