Appeal from order of Court of Common Pleas of Lackawanna County, Sept. T., 1967, No. 1902, in case of Richard M. Beynon et al. v. City of Scranton et al.
Harvey Gelb, City Solicitor, for appellants.
David J. Reedy, Jr., for appellees.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Hoffman, J.
[ 212 Pa. Super. Page 526]
The single issue in this case is whether the Director of Public Safety of Scranton may lawfully promulgate an order which provides for the retirement of all policemen and firemen at the age of sixty-five.
[ 212 Pa. Super. Page 527]
On September 8, 1967, the Director of Public Safety of Scranton issued an order directing the retirement of all policemen and firemen who reach their sixty-fifth birthday. Each of the five policemen-appellees was over sixty-five at the time and was dismissed from his position with the City. Subsequently, they filed this action in mandamus seeking payment of their salaries from the date of retirement and reinstatement to their former positions.
The lower court, on appellant's motion for judgment on the pleadings and stipulation of the facts by the respective parties, directed that judgment be entered in favor of the policemen. The City appealed.
The City's argument is set out in essence, in the following statement: "The power to hire and remove employees in Second Class A Cities is vested in the Director of Public Safety by statute, as follows:
"The directors or chief officers of departments shall appoint all subordinate officers, clerks, employes, and by written order, giving their reasons therefor may remove or suspend subordinate officers and clerks, provided the same is not done for political reasons.' Article XII, § 2 of the Act of 1901, March 7, P. L. 20, as amended, 53 P.S. § 22510 . . . The power thus reposed by statute in the Director of Public Safety impliedly includes the inherent power to retire employes for superannuation purposes. Not having prohibited superannuation retirement and not having otherwise specifically designated Council, another department or another officer in whom is vested the power to so retire employees, it was the intention of the legislature to include that power to retire within the power to remove vested in the Director of the Department of Public Safety."
The lower court rejected the argument of the City, relying heavily on the force of ...