Appeal from the Order of the Court of Common Pleas of Allegheny County, in the case of Michael Palyok v. Borough of West Mifflin and Jack Bergman, Theresa Corso, Joseph Mahoney and Irene Parkinson, members of West Mifflin Police Pension Fund, No. GD85-18231.
Ronald P. Koerner, Gatz, Cohen, Segal & Koerner, for appellant.
Donald C. Fetzko, for appellees.
Judges Barry and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge McGinley. Judge MacPhail did not participate in the decision in this case.
[ 122 Pa. Commw. Page 26]
This is an appeal by Michael Palyok (Palyok) from an order of the Court of Common Pleas of Allegheny County (trial court) which denied a Motion For Summary Judgment on Palyok's Complaint in Mandamus and granted the Motion for Summary Judgment of the Borough of West Mifflin et al., (Borough).
The stipulated statement of facts, as adopted by the trial court, establishes that Palyok was employed as a full time police officer by the Borough from November
[ 122 Pa. Commw. Page 271]
, 1958, until his retirement on May 1, 1985. During his employment, Palyok contributed a percentage of his salary and overtime pay to the police pension fund. The Borough also deducted the same percentage pension contribution from the pay he received for performing "extra work."*fn1 On December 10, 1957, pursuant to Section
[ 122 Pa. Commw. Page 281]
of the Police Pension Fund Act, Act of May 24, 1893, P.L. 129, as amended, 53 P.S. § 761, the Borough enacted Ordinance No. 313 establishing a Police Pension Fund. On February 6, 1973, the Borough enacted Ordinance No. 744 which amended Section 3 entitled, "Retirement Benefits," of Ordinance No. 313. Ordinance No. 744 reiterates portions of Section 5 of the Police Pension Fund Act (Act), Act of May 29, 1956, P.L. (1955) 1804, as amended, 53 P.S. § 771, and in relevant part provides: "the monthly pension or retirement benefits shall be one-half the monthly average salary of such members during the last sixty (60) months of employment." Ordinance No. 923 enacted May 8, 1986, amended Ordinance No. 744, Section 3, by reducing the formula base period from sixty months to the last thirty-six months of employment. Palyok's contributions were made pursuant to Section 6 of the Act, 53 P.S. § 772.*fn2 His contribution from November 1, 1958, through and including March 31, 1972, was based on
[ 122 Pa. Commw. Page 292]
% of the portion of monthly compensation of which Social Security allowances are payable, and 5% on any monthly compensation in excess of that on which Social Security allowances are payable. From April 1, 1972, through and including December 31, 1985, Palyok contributed monthly an amount equal to not less than 2.75% of that portion of monthly compensation of which Social Security allowances are payable, and 5% on any monthly compensation in excess of that on which Social Security allowances are payable. Palyok contributed $9,292.52 to the Police Pension Fund during the period of his employment.*fn3 Palyok's salary for the last thirty-six months was $86,727.65. Palyok's total compensation for the last thirty-six months was $96,835.76 which was comprised of the earned salary of $86,727.65, overtime of $1,429.88, and ...