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BOARD SUPERVISORS FOR NEWTOWN TOWNSHIP v. JAMES CHIRICO (03/06/85)

decided: March 6, 1985.

BOARD OF SUPERVISORS FOR NEWTOWN TOWNSHIP, APPELLANT
v.
JAMES CHIRICO, THOMAS NEWBY, III, AND BRIAN MCNEILL, APPELLEES. JAMES CHIRICO, THOMAS NEWBY, III, AND BRIAN MCNEILL, APPELLANTS V. BOARD OF SUPERVISORS FOR NEWTOWN TOWNSHIP, APPELLEES



Appeals from the Order of the Court of Common Pleas of Delaware County in the case of James Chirico, Thomas Newby, III, and Brian McNeill v. Board of Supervisors for Newtown Township, No. 6023 of 1975.

COUNSEL

Joanne R. Denworth, with her, Robin T. Locke, Sugarman, Denworth & Hellegers, for appellant/appellees, Board of Supervisors of Newtown Township.

Alexander A. DiSanti, Richard DiSanti, Hamilton, Gallagher & Paul, for appellants/appellees, James Chirico et al.

Anthony C. Busillo, II, Mancke, Lightman & Wagner, for Amicus Curiae, Pennsylvania Lodge of Fraternal Order of Police.

Thomas L. Wenger, with him, Karen Parenti Gunnison, Wix, Wenger & Weidner, for Amicus Curiae, Pennsylvania State Association of Township Supervisors.

Judges MacPhail and Barry and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge MacPhail. Judge Williams, Jr., did not participate in the decision in this case.

Author: Macphail

[ 88 Pa. Commw. Page 122]

Cross appeals were taken to this Court by the Board of Supervisors of Newtown Township (Township) and officers of the Newtown Township Police Department from an order of the Court of Common Pleas of Delaware County which directed the township to comply in part with arbitration awards made in 1975 and 1976 in favor of the Newtown Township Police Department. By order dated December 31, 1981 this Court affirmed the trial court in part and reversed in part.*fn1 Our order was subsequently affirmed in part and reversed and remanded in part by the Supreme Court of Pennsylvania.*fn2 That Court stated that we erred when we held that the trial court could not consider the alleged illegality of the awards. We were directed to decide whether the portions of the award of the Board of Arbitration (Board) challenged by the Township were illegal, the Supreme Court having stated that if such provisions were illegal they were unenforceable in the mandamus action instituted by members of the police department in the trial court who are now before us in the instant appeal.*fn3 Having heard reargument, we now proceed to dispose of those issues.

[ 88 Pa. Commw. Page 123]

    not available to employees retired as the result of non-service connected total disability.

Regarding the 1976 award, the trial court held that inasmuch as no actuarial study regarding feasibility had been made, the reduction in retirement age was not enforceable, citing Section 3 of the Act, 53 P.S. ยง 769, which reads in pertinent part as follows

Each ordinance or resolution establishing a police pension fund . . . shall fix the age of the members of the force at fifty-five years, or, if an actuarial study of the cost shows that such reduction in age is feasible, may fix the age of the members of the force at fifty years. . . .

In the instant appeal, the Township contends that the trial court erred when it upheld that part of the 1975 award which authorized pension benefits for persons with non-service connected disabilities. The police have cross-appealed as to the trial court's decision that disability retirement benefits were limited to 50% of salary and ...


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