Manning v. Millbourne Borough Civil Service Commission , 387 Pa. 176 ( 1956 )

Dissenting Opinion by

Mr. Justice Bell:

The Chancellor found the following facts, based upon clear, unequivocal and uncontradicted evidence: Jacob J. Manning was appointed Chief of Police by Borough Council on January 3, 1951, after and pursuant to the Civil Service Commission’s recommendation and certification of Manning to Borough Council for the office of Chief of Police. This recommendation and certification were made by the Civil Service Commission after a lengthy examination of Manning by the Chairman of the Commission who was duly authorized to do so by the Commission. Manning served until March 1, 1954, a period of over three years. The office of Chief of Police was then abolished and Manning was reduced to the rank of patrolman, in which rank he continued to serve until December 6, 1954, when he was dismissed summarily and without hearing. All that Manning asks is a hearing to which he is entitled under the Civil Service Law which had governed Millbourne Borough since 1947.

The present Civil Service Commission, the person* nel of which was changed after March 1, 1954, alleged that Manning does not have civil servi.ce status and is therefore not entitled to a hearing, because “the Civil Service Commissioners [in office at the time of the appointment] did not take the required oath and that Borough Council had not submitted to the Civil Service Commission plaintiffs name as a candidate for the office of Chief of Police as required by the Act, and further, that the Civil Service Commission had not given a non-competitive examination to the plaintiff and had not certified him as qualified to Council as required under the Act.” These technical allegations made by the present Civil Service Commission were dismissed by the lower Court which found, after ample and uncontradicted testimony, that the facts and the record refuted and completely disproved their allegations.

The decision of the majority of this Court is based on a technicality which ivas not presented or argued or even thought of by appellant (the present Civil Service Commission). The decision not only works a great injustice upon Manning, but is also contrary to the spirit and intent of Civil Service Law and I believe to the letter of the law.

I would affirm the Order of the Court below on the able opinion of Judge Diggins.

Mr. Justice Musmanno joins in this dissenting opinion.