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HAROLD BAUER v. EUGENE J. PETERS (01/31/75)

decided: January 31, 1975.

HAROLD BAUER, THOMAS EVANS, JOHN GAUGHAN, ARTHUR GINADER, WALTER GOERLITZ, ARTHUR HEIGHTMAN, ROBERT JONES, ROBERT KUHN, WILLIAM LEWIS, ROBERT MAGOR, DOMINICK RENDA AND EDWARD SCHLESSER, APPELLANTS,
v.
EUGENE J. PETERS, MAYOR OF THE CITY OF SCRANTON, ANTHONY J. BATSAVAGE, DIRECTOR OF THE DEPARTMENT OF PUBLIC SAFETY OF THE CITY OF SCRANTON, AND THE CITY OF SCRANTON, APPELLEES



Appeal from the Order of the Court of Common Pleas of Lackawanna County in case of Harold Bauer, Thomas Evans, John Gaughan, Arthur Ginader, Walter Goerlitz, Arthur Heightman, Robert Jones, Robert Kuhn, William Lewis, Robert Magor, Dominick Renda and Edward Schlesser v. Eugene J. Peters, Mayor of the City of Scranton, Anthony J. Batsavage, Director of the Department of Public Safety of the City of Scranton, and the City of Scranton, No. 376 May Term, 1972.

COUNSEL

James A. Kelly, for appellants.

Ralph J. Iori, Jr., with him David J. Reedy, Jr., for appellees.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate. Opinion by Judge Blatt.

Author: Blatt

[ 17 Pa. Commw. Page 195]

This appeal involves an action in mandamus by twelve firemen seeking reinstatement to the Bureau of Fire of the City of Scranton after having been discharged therefrom because of insufficient funds. Upon an agreed set of facts, the Court of Common Pleas of Lackawanna County refused reinstatement and the firemen appealed to this Court.

The firemen here concerned were all notified individually by letters dated January 14, 1972 from the Director of Public Safety and the Chief of the Bureau of Fire (appellees) that "[b]ecause of the lack of funds appropriated

[ 17 Pa. Commw. Page 196]

    in the salary ordinance for 1972 it is necessary for me to advise you of your retirement effective Saturday, January 15, 1972." At that time, all twelve were full-time firemen under the age of 65 and all had served at least 25 years so that all were entitled to pensions under the local firemen's pension fund ordinance. They did not consent in any way to dismissal and, in seeking reinstatement, they contend that their forced retirement was illegal.

The lower court, in upholding the dismissals, relied upon the Act of June 27, 1939, P.L. 1207, 53 P.S. § 23497, which provides that where economically necessary the total number of fire bureau employees may be reduced in cities of the Second Class by retirement of those employees eligible for retirement under the terms of the local firemen's pension fund ordinance.

This Court has held recently, in a case almost identical to the one at hand, that a similar statute relating to police department employee reduction for cities of the Second Class*fn1 does not apply to the City of Scranton, which is a city of the Second Class A. Wolkoff v. Owens, 12 Pa. Commonwealth Ct. 74, 314 A.2d 545 (1974). We concluded there that, unless otherwise provided by statute, Second Class A cities are governed only by such laws regulating cities of the Second Class as were in effect on March 9, 1927, the date when the legislature created the classification of cities of the Second Class A. The Act of March 9, 1927, P.L. 18, amending the Act of June 25, 1895, P.L. 275, 53 P.S. § 102; accord, Cummings v. Scranton, 348 Pa. 538, 36 A.2d 473 (1944). We further held that, because no employee reduction statute applied to Second Class cities at the time when Second Class A cities were provided for, and because no similar statute has since been promulgated for Second Class A cities, the City of Scranton was legally powerless to dismiss the

[ 17 Pa. Commw. Page 197]

    eleven full-time policemen there concerned according to the provisions applicable in cities of the Second Class where reductions in ...


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