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BANKS v. WILKES-BARRE (03/16/65)

decided: March 16, 1965.

BANKS, APPELLANT,
v.
WILKES-BARRE



Appeal from decree of Court of Common Pleas of Luzerne County, March T., 1963, No. 409, in case of Fred Banks and Carl Schwartz v. City of Wilkes-Barre.

COUNSEL

Andrew I. Puhak, with him George I. Puhak, for appellants.

Joseph B. Farrell, with him Robert J. Hourigan, for appellees.

Peter Paul Olszewski, for appellees.

Bell, C. J., Musmanno, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Roberts concurs in the result. Mr. Justice Jones took no part in the consideration or decision of this case.

Author: O'brien

[ 418 Pa. Page 91]

Appellants are paid firemen of the City of Wilkes-Barre. They filed a petition for declaratory judgment to determine the validity of an ordinance establishing a paid firemen's pension fund by the appellee, the City of Wilkes-Barre, the defendant. Retired firemen, widows of retired firemen, and a widow of a fireman killed in the performance of his duties as a fireman, were permitted to intervene by the lower court. The court sustained the legality of the ordinance, and from the final decree, this appeal was filed.*fn1

Appellee, on December 26, 1962, enacted Ordinance 31, which provided a paid firemen's pension fund for the purpose of pensioning paid firemen in the bureau of fire, and for the providing of pensions to presently retired firemen and the widows of retired firemen. Appellants contend that by reason of the inclusion of firemen who retired before the enactment of the 1962 ordinance, and others receiving pensions, being included in the ordinance, the ordinance is invalid.

The ordinance was enacted under the authority of The Third Class City Code.*fn2 Firemen's Relief and Pension Association, from which the intervenors are receiving pensions, is insolvent and in receivership. Appellants do not contest the validity of the provisions of The Third Class City Code and the amendments by which authority the 1962 ordinance was enacted. The ordinance itself, however, is attacked. The objections to the ordinance are (1) that a widow of a fireman who was killed in the performance of his duties as a paid fireman and who was receiving a pension

[ 418 Pa. Page 92]

    from the association now in receivership is entitled to a pension from the Paid Firemen's Pension Fund as created by the ordinance, and (2) that firemen who had been retired from the fire department and widows of firemen who had been retired and who are presently receiving pensions from the association now in receivership are included in the firemen's pension fund established by the ordinance. It was not until 1959 that widows of retired firemen were specifically mentioned as such, and provision made for them under the Fund if Council so elected. In that year, two amendments were enacted, neither of which referred to the other. The amendment of July 27, 1959, P. L. 569, § 3, 53 P.S. § 39320 (Supp.), provided: "The fund shall be applied, under such regulations as the board of managers shall prescribe, for the benefit of such members of the fire department as shall receive honorable discharge therefrom by reason of service or age or disability, widows of retired members if council so elects and the families of such as may be killed in the service. . . ." The other amendment passed on August 14, 1959, P. L. 704, § 1, 53 P.S. § 39320 (Supp.), provides: "The fund shall be applied, under such regulations as the board of managers shall prescribe, for the benefit of such members of the fire department as shall receive honorable discharge therefrom by reason of service or age or disability and the families of such as may be killed in the service. . . ."

When confronted with such a situation, the Statutory Construction Act*fn3 provides: "Whenever two or more amendments to the same provision of a law are enacted at the same or different sessions, one amendment overlooking and making no reference to the other or others, the amendments shall be ...


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