Appeal from the Order of the Court of Common Pleas of Butler County in case of Leroy S. Frederick, Charles J. Miller, J. Walter Harmon, Peter L. Scouteguazza, Arthur Taylor, C. Leo Burgess, Anthony Graham and Katheryn Price, and all others similarly situated v. The City of Butler, No. A.D. 78-002, Bk. 111, Page 430.
Lee C. McCandless, with him McCandless & Krizner, for appellants.
Martin J. O'Brien, for appellees.
President Judge Bowman and Judges Crumlish, Jr., Mencer, Blatt, DiSalle, Craig and MacPhail. Judges Wilkinson, Jr. and Rogers did not participate. Opinion by Judge Mencer. Judge DiSalle concurs in the result.
[ 45 Pa. Commw. Page 623]
A group of retired police officers of the City of Butler and the widows of police officers who had died prior to September 1, 1965, have appealed an order of the Court of Common Pleas of Butler County, dismissing their complaint in mandamus. The policemen seek to compel the City of Butler (Butler) to increase their pensions pursuant to Section 4303.1 of The Third Class City Code (Code), Act of June 23, 1931, P.L. 932, as amended, added by Section 1 of the Act of May 13, 1957, P.L. 134, 53 P.S. § 39303.1, and the widows seek to compel the payment of pension benefits pursuant to Section 4303(c) of the Code, added by Section 2 of the Act of July 27, 1959, P.L. 569, 53 P.S. § 39303(c). We affirm.
In Frederick v. City of Butler, 30 Pa. Commonwealth Ct. 625, 374 A.2d 768 (1977), we reversed an order of the Court of Common Pleas of Butler County and remanded the case "with directions that it be referred to the law side of the Court for determination in an action of mandamus or assumpsit and any further
[ 45 Pa. Commw. Page 624]
proceeding not inconsistent with the opinion filed herewith." Id. at 631, 374 A.2d at 771. Thereafter, the case was transferred to the law side of the court and plaintiffs filed an action in mandamus, assumpsit, and for declaratory judgment. Upon a motion by Butler, the lower court limited plaintiffs' action to one in mandamus.*fn1 Plaintiffs' exceptions to this ruling were dismissed by the lower court en banc. Subsequently, the court, finding that the decision to increase the pension of retired policemen was discretionary and that the City had not abused its discretion in refusing to increase their pensions, dismissed plaintiffs' complaint in mandamus. Plaintiffs' appeal to this Court followed.
It is well settled that the extraordinary writ of mandamus only issues to compel the performance of a ministerial act or a mandatory duty and only when there is a clear legal right in the plaintiff, a corresponding duty in the defendant, and the want of any other appropriate and adequate remedy. See Board of Commissioners v. Turner, 33 Pa. Commonwealth Ct. 639, 382 A.2d 1248 (1978). Moreover, mandamus will not compel the performance of discretionary acts except where the exercise or non-exercise of discretion is arbitrary, fraudulent, or based on a mistaken view of the law. See Valley Forge Racing Association v. State Horse Racing Commission, 449 Pa. 292, 297 A.2d 823 (1972). With these principles in mind, we turn first to the claims of the widows.
[ 45 Pa. Commw. Page 625]
Prior to September 1, 1965, third class cities were not obligated to pay pensions to widows or children of police officers. On that date, the legislature ...