Appeals, Nos. 137 and 140, Jan. T., 1951, from judgment of Court of Common Pleas of Lehigh County, Sept. T., 1950, No. 229, in case of Alexander Altieri et al. v. Allentown Officers' & Employees' Retirement Board et al. Judgment at No. 137 reversed; appeal at No. 140 dismissed.
Ralph H. Griesemer, City Solicitor, with him Joseph B. Walker, Assistant City Solicitor, for defendants.
William S. Hudders, with him Butz, Steckel, Hudders & Rupp, for plaintiff, Altieri.
Donald L. LaBarre, for plaintiffs, Reber et al.
Before Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE JONES
These appeals are from a judgment in an action of mandamus which a number of former employees of the City of Allentown (a city of the third class) instituted against the Allentown Officers' and Employees' Retirement Board and the individual members of the board. The city's retirement system and the administering board were created by ordinance enacted May 1, 1946, pursuant to authority conferred by the Third Class City Employees Retirement Law of May 23, 1945, P.L. 903, 53 PS §§ 12198-4371 to 4384 incl. The ordinance incorporated, by adoption, the material provisions of the Act. The plaintiffs sought to comple the defendants to award them retirement pay to which they claim they are entitled by virtue of the ordinance. All of the claims are asserted under the provision supplied by Sec. 4(b) of the Retirement Act.
The defendants filed preliminary objections to the complaint, alleging improper joinder of the individual members of the Retirement Board as parties defendant and, further, that Section 4(b) of the Third Class City Retirement Act is unconstitutional as constituting a grant of extra compensation to public employees after their services have been rendered in violation of Article III, Section 11, of the Constitution of the Commonwealth. The defendants later interposed the additional objection that Sec. 4(b) amounted to a charitable gratuity to a person in violation of Article III, Section 18, of the Constitution. The learned court below sustained the objection to the joinder of the board members as defendants but construed Sec. 4(b) of the Retirement Act in such a way as to accredit four of the plaintiffs with an immediate right to retirement benefits while denying such right to the two other plaintiffs and rejected the defendants' constitutional contentions. The court accordingly entered an order awarding to the four successful plaintiffs a peremptory writ and dismissing the proceeding as to the other two. One of the latter has appealed as has, also, the Officers' and Employees' Retirement Board.
So much of Section 4(b) as is presently material provides as follows: "Section 4... (b) Where an officer or employe shall have served for twelve (12) years, or more, and his tenure of office or employment shall be terminated without his voluntary action before the expiration of twenty (20) years of service, he shall, in such event, during the remainder of his life, be entitled to receive such portion of the full compensation as the period of his service up to date of its termination bears to the full twenty-year period of service; where an officer or employe who has served for twenty (20) years, or more, and his tenure of office or employment shall be terminated without his voluntary
action then he shall be entitled to full compensation for the ...