Appeal, No. 32, May T., 1960, from judgment of Court of Common Pleas of Dauphin County, Sept. T., 1958, No. 662, in case of Earl F. Eisenberger v. Police Pension Commission of City of Harrisburg. Judgment affirmed.
William S. Livengood, Jr., with him Charles J. Ware, and Livengood, Braucher & Stroup, for appellant.
James S. Bowman, Assistant City Solicitor, with him Spencer G. Hall, City Solicitor, for Police Pension Commission, appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE COHEN.
This is an appeal from the judgment entered for the appellee Commission by the lower court in an action in
mandamus. The facts herein recited are taken from the stipulation by the parties and the history as set forth in counsel's briefs.
As of May 20, 1958, Earl F. Eisenberger, appellant, was over fifty years of age and had served as a member of the Harrisburg Police Department for twenty years. During this time appellant complied fully with all provisions of the various statutes and ordinances governing contributions to the police retirement fund. On May 5, 1958, he filed an application for retirement with the Police Pension Commission and the Mayor of the City of Harrisburg, to become effective May 20, 1958. The rejection of the application by the appellee has engendered this appeal.
At the time appellant entered the service of the police department on May 1, 1938, the retirement of city policemen and the pensions to be paid upon such retirement were governed by Harrisburg City Ordinance No. 95, of the Session of 1920-21, passed under authority of the Act of May 24, 1893, P.L. 129, 53 PS § 761, the original Pension and Retirement Act, which applied to all boroughs and cities of the Commonwealth. Said ordinance provided, inter alia, in section 6, as follows: "Section 6: Every officer or employe of the bureau of police accepting the provisions of this ordinance, who shall have served for a period of twenty (20) years and shall have reached the age of fifty-five (55) years, shall be entitled to be retired at the option of the Police Pension Commission, on his or her own request on a pension, the pension to date from the time the officer or employe shall have filed his or her application with the Commission...."
The Act of 1893 (supra) was repealed, insofar as cities of the third class were concerned, by the Third Class City Code, Act of June 23, ...