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YORK PAID FIREMEN'S PENSION FUND BOARD YORK CITY v. M. KENNETH LINDSEY (06/05/80)

decided: June 5, 1980.

YORK PAID FIREMEN'S PENSION FUND BOARD OF YORK CITY, PENNSYLVANIA, APPELLANT
v.
M. KENNETH LINDSEY, APPELLEE



Appeal from the Order of the Court of Common Pleas of York County in case of M. Kenneth Lindsey v. York Paid Firemen's Fund Board of York City, Pennsylvania, No. 77-8-1325.

COUNSEL

Donald B. Hoyt, Assistant City Solicitor, for appellant.

James B. Leckrone, with him Carl H. Cordes, for appellee.

Judges Mencer, Craig and Williams, Jr., sitting as a panel of three. Opinion by Judge Mencer. Judge Williams, Jr. dissents.

Author: Mencer

[ 52 Pa. Commw. Page 52]

The York Paid Firemen's Pension Fund Board of York City (Board) appeals from an order of the Court of Common Pleas of York County which granted a summary judgment in favor of M. Kenneth Lindsey (Lindsey). We reverse.

The facts are undisputed. Lindsey retired as a paid fireman on February 11, 1969 and began receiving pension benefits, in the amount of $3,800 per year, pursuant to an ordinance which established pension benefits at one-half of a fireman's salary at the time of his retirement. On May 19, 1969, the City of York, upon recommendation by the Board, passed an ordinance which increased pension benefits to a level equal to one-half of the current salary being paid to firemen of the highest pay grade. For the years 1970-72, Lindsey received pension benefits at the increased rate.

On December 26, 1972, the City, without action or recommendation by the Board, enacted an ordinance repealing its May 19, 1969 ordinance. Thereafter, Lindsey's pension benefits for years 1973 to present remained at the 1972 level of $5,000 per year. The highest pay grade increased each year after 1972, and Lindsey sued to recover the difference between his benefit level and one-half of the highest pay grade. The lower court granted Lindsey's motion for summary judgment and this appeal followed.

The lower court's order was based upon its determination that the City of York did not have the statutory authority to revoke the proposed increases. The

[ 52 Pa. Commw. Page 53]

    lower court found that this authority had been delegated to the Board, pursuant to Section 4320 of The Third Class City Code (Code), Act of June 23, 1931, P.L. 932, as amended, 53 P.S. § 39320, which reads, in pertinent part, as follows: "All pension funds established under the provisions of this section shall be under the direction and control of a board of managers. . . . The fund shall be applied, under such regulations as the board of managers shall prescribe. . . ."

We disagree. Section 4322.1 of the Code, 53 P.S. § 39322.1, provides:

Any city may, at any time, at its discretion, upon the recommendation of the persons having custody and management of the firemen's pension fund, increase the allowances of persons receiving allowances of any kind from the fund by reason of and after the ...


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