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LINDENBAUM

April 18, 1984

Lesser LINDENBAUM, et al.
v.
CITY OF PHILADELPHIA, et al.



The opinion of the court was delivered by: POLLAK

 On February 5, 1981, the Philadelphia City Council enacted Bill 474 which reads as follows:

 
§ 129. Minimum Pensions for Full-Time, Non-Uniformed Employees And Their Beneficiaries.
 
(c) All retired members of District Council 33 who, on July 1, 1980, have been retired for five (5) or more years and who had fifteen (15) or more years of credited service with the Municipal Retirement System at the time of retirement, shall receive an increase in monthly pension benefits of 8%.
 
This ordinance shall be effective July 1, 1980.

 On May 6, 1982, the Philadelphia City Council enacted Bill 625A which reads as follows:

 
SECTION 1. Section 129 of the Retirement System Ordinance is hereby amended by adding a new Subsection 129(d) to read as follows:
 
§ 129. Minimum Pensions for Full-Time, Non-Uniformed Employees And Their Beneficiaries.
 
(d) All retired members, [not already included under § 129(c)] who were in non-represented classes of employment, comprising management level employees above the second-level of supervision and confidential employees, or who were in classes of employment prohibited from union representation at the time of their retirement, who, on July 1, 1980, had been retired for five (5) or more years and who had fifteen (15) or more years of credited service with the Municipal Retirement System at the time of retirement, shall receive an increase in monthly pension benefits of 8%.
 
This ordinance shall be effective July 1, 1980.

 Plaintiffs, seven retired city employees who had been retired for more than five years as of July 1, 1980, and who had fifteen or more years of credited service with the Municipal Retirement System at the time of their retirement but who have not received the eight percent increase in pension benefits, have brought this action on behalf of themselves and all other similarly-situated individuals seeking declaratory and injunctive relief as well as damages. The complaint alleges claims under 42 U.S.C. § 1983; the United States Constitution, in particular, the protections of speech, association, due process and equal protection found in the First and Fourteenth Amendments; the Pennsylvania Constitution; and the Pennsylvania Public Employee Relations Act (PERA), Pa.Stat. Ann. tit. 43, §§ 1101.101 to .2301 (Purdon's Pamphlet 1983), in particular, §§ 1101.401 and 1101.1201 thereof.

 Although plaintiffs have brought this suit as a class action, a class has not yet been certified. The matter is now before me on defendants' motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.

 It is important to note that the plaintiffs currently named in the complaint fall into two distinct groups. The challenges raised by each of these two groups of plaintiffs are similar but they have important differences. Thus, the two groups of plaintiffs will be discussed separately in this Opinion.

 The first group of plaintiffs consists of Lesser Lindenbaum, Sadye R. Serody, Mary Knodle and Elizabeth Shuman (hereinafter referred to as the "Lindenbaum plaintiffs."). They were all city employees who "were in employment positions represented by District Council 33, although said plaintiffs elected not to be members of said Union." Complaint at para. 29. These plaintiffs' claims focus upon Bill 474 which granted the eight percent pension increase to members of District Council 33. These plaintiffs claim that they are indistinguishable from those who were awarded the increased pension benefits except for the fact that they did not join District Council 33. They assert that the City cannot constitutionally distinguish between persons on this basis.

 Defendants, the City of Philadelphia, the City Council of Philadelphia, the Board of Pensions and Retirement of the City of Philadelphia, and the former Mayor of Philadelphia, William J. Green, have moved to dismiss the complaint as to all plaintiffs and all counts. The motion to dismiss argues that the complaint fails to state any valid federal claims. In addition, the motion asserts that the pendent state law claims should be dismissed if no federal claims survive this motion and that, without regard to the viability of the federal claims, the state law claim under PERA should fail.

 Since the Lindenbaum and Kaplan plaintiffs have advanced somewhat different claims, I will review the issues raised by the motion to dismiss separately ...


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