Appeal from the Order of the Court of Common Pleas of Northumberland County in case of Clem P. Karpinski, Jr. v. City of Sunbury; Sunbury City Police Pension Commission; Sunbury City Council, No. CV-79-1561.
E. Eugene Brosius, for appellants.
Robert L. Walsh, with him Leonard R. Apfelbaum, Apfelbaum and Walsh, for appellee.
Judges Blatt, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Blatt.
[ 70 Pa. Commw. Page 474]
The appellants, the City of Sunbury, the Sunbury City Police Pension Commission, and the Sunbury City Council (City) appeal here from an order of the Court of Common Pleas of Northumberland County granting the petition of the appellee (Karpinski) for mandamus.*fn1
[ 70 Pa. Commw. Page 475]
Karpinski, the Chief of Police of the City of Sunbury, was arrested on April 3, 1978 and charged with theft by failure to make proper disposition of parking meter money belonging to the City. On the same day he was suspended without pay, pending a hearing by Council. One day prior to the hearing, scheduled for June 2, 1978, he tendered his immediate resignation and requested that his "vested" rights in the Police Pension Fund (Fund) be awarded promptly. Approximately ten days later, City Council voted that Karpinski be dishonorably discharged without pension or retirement benefits, and he was so notified.
The issue before us is whether or not the honorable discharge requirement in the Sunbury Police Pension Fund Ordinance (Ordinance) is in accord with the enabling act, set forth in The Third Class City Code*fn2 (Code). It is well settled, of course, that an ordinance must be in conformity with the provisions of the enabling statute. Genkinger v. City of New Castle, 368 Pa. 547, 84 A.2d 303 (1951). And, as our Supreme Court has recognized:
Neither municipalities nor school districts are sovereigns; they have no original or fundamental power of legislation. . . . They have the right and power to enact only those legislative . . . ordinances or resolutions which are authorized by an Act of the Legislature; and if such ordinance or resolution is unauthorized or conflicts with the enabling statute or with some of its provisions it is in that respect or to that extent void.
[ 70 Pa. Commw. Page 476]
Such ordinance shall prescribe a minimum period of continuous service, not less than twenty years, and, when any minimum age is prescribed, a minimum age of fifty years, after which members of the force may retire from active duty, and such members as are retired shall be subject to service, from time to time, as a police reserve until unfitted for such ...