The opinion of the court was delivered by: MANSMANN
Both Plaintiffs in these actions were formerly firefighters employed by the City of Clairton. In early 1982, Clairton initiated a reduction-in-force for budgetary reasons. Selections for the reduction-in-force were made pursuant to § 11 of the Pennsylvania Third Class City Firemen's Civil Service Code ("Code"), as amended, 53 P.S. § 39871.
Plaintiffs Popko and Mayzel were among those selected for the reduction-in-force. Mr. Popko was 57 years old when he was laid-off; Mr. Mayzel was about 50 or 51 years old at the time he was laid-off. Both Plaintiffs were chosen for the reduction because of and in accordance with § 11 of the Pennsylvania Third Class Firemen's Civil Service Code, as amended, 53 P.S. § 39871.
Plaintiffs filed the present action
alleging that their selection constitutes age discrimination prohibited by the Federal Age Discrimination in Employment Act ("ADEA" or "Act"), as amended, 29 U.S.C. § 623(a) and (f)(2).
Defendant has also moved for summary judgment, contending that its actions do not violate the ADEA because the reduction was conducted for budgetary reasons and the selections were based upon eligibility for pension.
Under Fed.R.Civ.P. 56(c), summary judgment may be entered only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The Court of Appeals for the Third Circuit has made clear that any doubts as to the existence of genuine issues of fact are to be resolved against the moving parties. Continental Ins. Co. v. Bodie, 682 F.2d 436, 438 (3d Cir. 1982); Hollinger v. Wagner Mining Equipment Co., 667 F.2d 402, 405 (3d Cir. 1981). Further, the facts and the inferences to be drawn from the facts must be viewed in the light most favorable to the party opposing the motion. Continental Ins. Co. v. Bodie, supra at 438; Betz Laboratories, Inc. v. Hines, 647 F.2d 402, 404 (3d Cir. 1981).
Cross-motions for summary judgment are no more than a claim by each side that it alone is entitled to summary judgment. Rains v. Cascade Industries, Inc., 402 F.2d 241, 245 (3d Cir. 1968). "(A) party moving for summary judgment concedes the absence of a factual issue and the truth of the non-moving party's allegations only for purposes of his own motion." 10A Wright, Miller and Kane, FEDERAL PRACTICE AND PROCEDURE § 2720 at 20 (1983). If, however, there is no genuine factual issue and one or the other party is entitled to prevail as a matter of law, summary judgment is appropriate. Id. at 25.
In the consolidated cases before us, both sides agree and the record reflects that there are no genuine factual issues and that the only question presented is one of law.