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LOCAL 302 v. CITY ALLENTOWN ET AL. (12/29/80)

decided: December 29, 1980.

LOCAL 302, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS ET AL., PETITIONERS
v.
THE CITY OF ALLENTOWN ET AL., RESPONDENTS



Original jurisdiction in the case of Local 302, International Association of Fire Fighters et al. v. The City of Allentown et al. and Pennsylvania Municipal Retirement Board et al.

COUNSEL

Stephen C. Richman, with him Andrew L. Markowitz and Quintes D. Taglioli, Markowitz & Richman, for petitioners.

Jack I. Kaufman, Assistant City Solicitor, for respondent, City of Allentown.

Thomas J. Mangan, Jr., Assistant Attorney General, with him Edward G. Biester, Jr., Attorney General, for respondent, Pennsylvania Municipal Retirement Board.

President Judge Crumlish and Judges Mencer, Rogers, MacPhail and Palladino. Judges Wilkinson, Jr., Blatt, Craig and Williams, Jr. did not participate. Opinion by Judge MacPhail.

Author: Macphail

[ 55 Pa. Commw. Page 601]

We have before us for disposition cross motions for summary judgment in an action filed by Local 302, International Association of Fire Fighters, AFL-CIO (Union) and three individuals (Petitioners) against the City of Allentown (City) and the Pennsylvania Municipal Retirement Board et al. (Board).

The critical facts in this case are not in dispute. On May 25, 1969, the City adopted Ordinance No. 11576 which established a Paid Firemen's Pension Fund. Section 6.00 of that ordinance provided that any regular salaried fireman or employee of the City Fire Department who accepted the provisions of the ordinance would be entitled to certain pension benefits. On May 19, 1976, the City adopted Ordinance No. 12185 which amended Ordinance No. 11576 by providing that membership in the Paid Firemen's Pension Fund would be closed on the effective date of the new ordinance and that from that time forward paid firemen hired by the City would be bound by the provisions of the Pennsylvania Municipal Retirement Law, Act of February 1, 1974, P.L. 34, as amended, 53 P.S. ยง 881.101 et seq. The Petitioners were hired after May 19, 1976. At the time Petitioners were hired there was a collective bargaining agreement (Agreement) between

[ 55 Pa. Commw. Page 602]

    the City and the Union. Section 21 of the Agreement incorporated Ordinance No. 11576 and purported to amend the pension plan. There is no other reference in the Agreement to the Paid Firmen's Pension Fund.

The Union and Petitioners brought this action in our appellate and original jurisdiction, Sections 401 and 403 of the Appellate Jurisdiction Act.*fn1 They seek, inter alia, to have us declare Ordinance No. 12185 invalid and enjoin the Board from receiving any payments from the City made pursuant to the provisions of the Pennsylvania Municipal Retirement Law.

In the stipulation of facts filed by the parties, a provision is inserted that this Court has jurisdiction of the case pursuant to Sections 401 and 403 of the Appellate Jurisdiction Act. It is also provided therein that the City and the Union have agreed to waive resort to the grievance and arbitration clause in the Agreement as a means of resolving this dispute, notwithstanding the fact that the stipulation also provides that the Union has filed grievances on behalf of the Petitioners.

It is certain that jurisdiction cannot be conferred on this Court by the agreement of the parties. Lashe v. Northern York County School District, 52 Pa. Commonwealth Ct. 541, 417 A.2d 260 (1980). Accordingly, the first issue we will address is ...


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