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June 28, 1954


Appeal, No. 104, March T., 1954, from order of Court of Common Pleas of Allegheny County, Oct. T., 1953, No. 1782, in case of Thomas W. Hickey v. The Pension Board of the City of Pittsburgh. Order reversed. Mandamus. Plaintiff's motion for summary judgment refused and final order entered, before ELLENBOGEN, ADAMS and ADAIR, JJ., order by ADAIR, J. Plaintiff appealed.


Ella Graubart, with her Patterson, Crawford, Arensberg & Dunn, for appellant.

Albert E. Kabet, with him Nicholas R. Stone, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Musmanno

[ 378 Pa. Page 301]


On May 10, 1910, Thomas W. Hickey, being then less than 28 years of age, entered the employment of the City of Pittsburgh. Five years later the Legislature

[ 378 Pa. Page 302]

    of Pennsylvania enacted a law, Section 3 of which reads: "Every person now or hereafter employed by the said cities, as herein provided, if any, of the age of sixty years and upwards, who shall have been so employed for a period of twenty years or more, shall, upon application to the board of pensions herein created, be retired from service, and shall during the remainder of his or her life receive the pension or compensation fixed by this act..." (Sec. 3, Act of Assembly, May 28, 1915, P.L. 596).

The establishment of this pension undoubtedly offered a substantial inducement to Thomas Hickey to remain in government service. He was then only 33 years of age. Employment in private industry could have brought him a higher rate of pay with even possibly better opportunities for promotion, but against those attractions government service offered a more certain tenure and, with this pension law, an assured annuity in the future. Hickey could even build upon the prospect of obtaining, when he had reached his sixtieth year, another job, compensation from which, added to the guaranteed pension, would make for a comfortable living in his later years. With this longranged plan of his life ahead of him he agreed to remain 20 years with the City and pay certain sums into the Pension Fund.

In 1930 Hickey completed his twentieth year in the employment of the City and thus, under the Act of 1915, was qualified to receive his pension when he reached the three-score milestone of his life. Contractually, financially and morally Hickey had met all requirements for the pension and its fulfillment was delayed for reasons of chronology alone.

On April 26, 1933 (three years after Hickey had met the minimum tenure requirement in the City service,) the Legislature amended the Act of 1915, as follows:

[ 378 Pa. Page 303]

"If a pensioner of the cities of the second class shall or may hereafter be employed by the government of the United States, or the Commonwealth of Pennsylvania, or the same county in which such cities are, or by any subdivision of such counties, then such pension board of said cities of the second class shall have, and is hereby given, the authority to suspend the pension payments to such pensioner during the period of such employment." (Sec. 14, Act of Assembly, April 26, 1933, P.L. 81, amending Act of May 28, 1915, P.L. 596).

On January 1, 1947, Thomas Hickey, having now passed his sixtieth birthday, retired from the City, and the City, in accordance with the Act of 1915, initiated pension payments to him in the sum of $126.36 per month. But when, on February 1, 1952, Hickey obtained employment with the County of Allegheny, the City Pension Board discontinued payments to him under the supposed authority of the above-mentioned Act of 1933.

Hickey filed a Complaint in Mandamus to compel the defendant Pension Board to pay him the pension installments regardless of other employment. The court below dismissed the Complaint and the plaintiff appealed.

A similar question to the one raised in this case came before us in Baker v. Retirement Board of Allegheny County, 374 Pa. 165, where the defendant Allegheny County Retirement Board maintained that Baker who had been an employe of the City of Pittsburgh and was receiving a pension from the City and who after retirement from the City became a County employee, was not entitled to a pension from the County of Allegheny because of the Act of ...

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