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decided: April 20, 1965.


Appeal from judgment of Court of Common Pleas of Allegheny County, April T., 1964, No. 1147, in case of James Regan v. Firemen's Relief and Pension Fund of City of Pittsburgh and Firemen's Relief and Pension Fund Board of City of Pittsburgh.


David Rainero, with him Gatz, Cohen, O'Brien & Maurizi, for appellant.

David W. Craig, City Solicitor, with him Robert E. Dauer, Assistant City Solicitor, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno.

Author: Musmanno

[ 417 Pa. Page 574]

James Regan served in the United States Army from September 12, 1942 to October 31, 1945, when he was honorably discharged. On January 16, 1948, he became a fireman with the City of Pittsburgh and is still so employed. All firemen are entitled to retire on a pension after 20 years service which means that, computing from January, 1948, Regan could start receiving retirement benefits in January, 1968. However, he contends, and he filed in the court below, a petition for declaratory judgment to that effect that he may retire now and receive retirement benefits at once because he is entitled to add to his 17 years' fireman service the 3 years he was a soldier of the United States. He makes this claim under the Act of May 25, 1933, P. L. 1050, as amended, 53 P.S. § 23611, which indeed does provide that military service in time of war may be added to a fireman's incumbency to make up the 20 years which entitles the fireman to a pension.

The lower court rejected Regan's claim. The pertinent part of the applicable statute reads: "Members of the fund shall be eligible to pension under said fund upon written application of such member, stating his desire to withdraw from service in said city, which application shall show either -- (1) That such employe has rendered at least twenty years service to the said city, at least one year of which was immediately prior to his application, but which does not otherwise necessitate continuous service but that such service shall total twenty years, and shall include and may include service in the armed forces of the United States in times of war or active service in the Pennsylvania State Militia when said militia has been mobilized for internal police duty; or . . ." (Emphasis supplied.)

"Shall include " necessarily means within. The military service thus must come within the 20 years, which

[ 417 Pa. Page 575]

    can obviously only run from the time the fireman began his services as a fireman. "Include" cannot refer to service which occurred before the applicant for a pension became a fireman. As the city solicitor well put the proposition in his brief: "A straightforward reading of the statute shows that the military service credit is inextricably linked with an employment relationship to the city."

Before January 16, 1948, Regan had no employment relationship with the City. The Superior Court placed this proposition in crystalline focus when it said in Hamilton v. Wilson, 172 Pa. Superior Ct. 437: "The indispensable prerequisite for eligibility to retirement compensation is valid attachment to the public payroll for the qualifying period."

Thus, until Regan became attached to the payroll of the City of Pittsburgh he could not possibly be regarded as an applicant for a pension. In Corpus Juris Secundum (62 C.J.S., Municipal Corporations, § 727f), we find this cogent language: "Under statutes making a specified number of years' service from the date of entering the pension fund a condition precedent to eligibility for pension and providing that, in computing the time required before becoming eligible to retire on pension, members of the fund shall have credit for time served in the armed forces, time so spent before joining the fund should not be counted in computing the specified number of years." (Emphasis supplied.)

It is to be noted that the statute at the outset declares that "such employe" must have rendered 20 years service to the City and then goes on to state that such 20 years need not be continuous, and shall include military service. Thus, the military service was being considered only with respect to continuity of employment. Obviously the statute was emphasizing that continuity of ...

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