Appeal, No. 101, March T., 1955, from order of Court of Common Pleas of Allegheny County, July T., 1954, No. 2092, in case of Frank Albert Mauch v. The Pension Board of the City of Pittsburgh. Judgment modified.
John A. Metz, Jr., with him Metz, McClure, Hanna & MacAlister, for appellant.
Nicholas R. Stone, with him Stone & Silvestri, for appellee.
Before Stern, C.j., Stearne, Jones, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ARNOLD
Plaintiff appeals from the judgment of the court below disallowing interest on pension payments found due him in an amicable action of mandamus.
The agreed facts in the action are: Plaintiff had been an employe of the City of Pittsburgh from January 2, 1901 until the city terminated his employment on January 15, 1925. From the effective date of the Act of 1915, P.L. 596, 53 PS § 9411, which established the pension fund for city employes administered by defendant,
until March 26, 1939, he made all payments into the Fund as required. On June 25, 1925, and continuously to the date of the action in mandamus, he was employed by the County of Allegheny.
Plaintiff became 60 years of age on March 26, 1939, and was then entitled to pension payments. But prior thereto there was enacted the Act of 1933, P.L. 81, 53 PS § 9422a, which provided that if a pensioner of the city be employed by the same county in which the city is situate, the pension board of the city had authority to suspend pension payments during the period of employment. On June 7, 1933, in pursuance of this Act, the defendant notified plaintiff of his eligibility for pension, but advised that no payments would be made by reason of his employment by the county. Plaintiff acquiesced in this action, as he did the refusal of his formal application for pension made on April 9, 1942, until the commencement of this action on May 27, 1954.
It was agreed that "if the court shall determine Plaintiff is entitled to a pension from said Pension Fund judgment shall be entered ... requiring Defendant to pay Plaintiff his pension in such amount as the law provides from March 26, 1939 to the date of said judgment ..."
On December 7, 1954, on the authority of Hickey v. Pittsburgh Pension Board, 378 Pa. 300, 106 A.2d 233, the court entered judgment for plaintiff "that defendant shall pay plaintiff a pension in such amounts ...