Appeal from the Order of the Court of Common Pleas of Delaware County in case of Local 1400, Chester City Fire Fighters Association, Affiliated with the International Association of Fire Fighters, AFL-CIO, by its Trustee ad Litem James McDonald, President of Local 1400, and on his own behalf v. John H. Nacrelli, Mayor of Chester, Pennsylvania, and Councilmen of Chester, Pennsylvania, James Sharp, Leo Holmes, Clement McGovern and Alexander Osowski, No. 2162 of 1973.
Louis H. Wilderman, with him Meranze, Katz, Spear & Wilderman, for appellants.
Louis J. Sinatra, with him Melvin G. Levy, and, of counsel, Levy and Levy, for appellees.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Blatt.
[ 30 Pa. Commw. Page 243]
The Chester City Fire Fighters Association (Local 1400) brings this appeal from an order of the Court of Common Pleas of Delaware County which dismissed its complaint in mandamus.
An arbitration panel had been convened in 1971 after collective bargaining between Local 1400 and the City had reached an impasse, and, included in the December 9, 1971 arbitration award was a mandate that a pension plan be created for all members of the bargaining
[ 30 Pa. Commw. Page 244]
unit. The award further provided that for purposes of seniority "each member of the bargaining unit shall be deemed to have been employed by the City of Chester on the date of his last hire by a Chester fire company or by the City of Chester, whichever is earlier."
Attempting to comply with the award, the City adopted Ordinance No. 79, creating a paid firemen's pension fund, but it refused to include any provision therein for past service credits prior to January 1, 1972, the date on which certain firemen who had previously been paid by volunteer fire companies became city employes. Local 1400 brought an action in mandamus to compel the City to modify the ordinance so as to include service credits for the period between the date of hire by a volunteer fire company and January 1, 1972, and, when preliminary objections to this complaint were sustained by the Court of Common Pleas of Delaware County, Local 1400 appealed to this Court from the dismissal of its complaint. We then held that the lower court had erred in sustaining the preliminary objections and remanded the case for further proceedings to determine whether or not the firemen paid by the volunteer fire companies to drive fire equipment were, in fact, employes of the City prior to January 1, 1972.*fn1 After hearing evidence on this issue, the lower court concluded that the paid drivers were not employes of the City during the period in question, and it therefore dismissed the complaint. Local 1400 filed exceptions to the decision which were also dismissed and it has now asked us to review the lower court's decision.
In an action in mandamus, our scope of review is to determine whether or not the lower court abused its discretion or committed an error of law and whether
[ 30 Pa. Commw. Page 245]
or not sufficient evidence supports the lower court's findings. Venneri v. County of Allegheny, 12 Pa. Commonwealth Ct. 517, 316 A.2d 120 (1974). The lower court found here, and the record clearly establishes, that the paid drivers for the volunteer companies were hired and fired by those companies and that each company, not the City, determined the terms or conditions of the drivers' employment. Although the City made lump sum appropriations to the fire companies, it exercised no control or supervision over the internal operations of the companies nor did it control the portion of the appropriation used for salaries of the paid drivers. Having so found, and with clearly sufficient evidence before it on which to ...