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CITY READING KAREN A. MILLER v. CATHERINE M. FELTMAN (07/26/89)

decided: July 26, 1989.

CITY OF READING; KAREN A. MILLER, MAYOR; AND THE POLICE PENSION FUND BOARD OF THE CITY OF READING, APPELLANTS,
v.
CATHERINE M. FELTMAN, APPELLEE. CITY OF READING; KAREN A. MILLER, MAYOR; AND THE POLICE PENSION FUND BOARD OF THE CITY OF READING, APPELLANTS, V. MARY MAE TEMPLIN ET AL., APPELLEES



Appeal from Common Pleas Court, Berks County; Honorable Albert A. Stallone, Judge.

COUNSEL

William M. Young, Jr., Francis B. Haas, Jr., McNees Wallace & Nurick, Harrisburg, and Jack A. Linton, Peter F. Cianci, City Solicitor's Office, Reading, for appellants.

Robert T. Miller, Stevens & Lee, Susan E.B. Frankowski, Leon Ehrlich, Ehrlich and Ehrlich, Reading, for appellees.

Barry and Palladino (p.), JJ. and Barbieri, Senior Judge.

Author: Palladino

[ 127 Pa. Commw. Page 620]

The City of Reading (City), its mayor and its Police Pension Fund Board (Board) (collectively, Appellants) appeal from a decision of the Court of Common Pleas of Berks County denying their motion for post-trial relief.

The facts are not in dispute and they are as follows. In 1966, the City enacted Ordinance No. 49, which amended the City's Police Pension Fund Ordinance, originally enacted on December 15, 1926. The 1966 amendment increased from 1% to 3% the deduction from a member's gross salary

[ 127 Pa. Commw. Page 621]

    and also mandated an additional 1% deduction from the pay of "married male members." The 1966 amendment provided that the additional 1% deduction was to:

[P]rovide funds for pension benefits for widows of members of said organization (1) who have not retired before September 1, 1965, and who die on or after said date and (2) who retired on pension on or after September 1, 1965, and who die on or after said date, or if no widow survives or if she survives and subsequently dies or remarries, then for the child or children under the age of eighteen years of such male members, which pension shall be calculated at the rate of fifty per centum of the pension such male member was receiving or would have been receiving had he been retired at the time of his death.

On February 11, 1970, the City enacted Ordinance No. 10, again amending its Police Pension Fund Ordinance. The 1970 amendment provides, in pertinent part:

The widow of a member of the police force or a member who retires on pension who dies or if no widow survives or if she survives and subsequently dies or remarries, then the child or children under the age of eighteen years of a member of the police force or a member who retires on pension who dies on or after the effective date of this amendment, shall, during her lifetime or so long as she does not remarry in the case of a widow or until reaching the age of eighteen years in the case of a child or children, be entitled to receive the pension the member was receiving or would have been receiving had he been retired at the time of his death.

The present case began in 1981 when Appellees, plaintiffs below, who are survivors of members of the City's police force, filed a class action in mandamus claiming entitlement to pension benefits under the 1970 amendment. In addition, Appellees sought interest on unpaid pension benefits, punitive damages, counsel fees and costs. Subsequently, the parties entered into a stipulation of facts. Thereafter, Appellees filed a motion for summary judgment. The trial court, per Judge Saylor, granted the motion for summary

[ 127 Pa. Commw. Page 622]

    judgment as to certain Appellees. Judge Saylor determined that survivors of a police officer who retired and died between September 1, 1965 (the effective date of Ordinance No. 49) and February 11, 1970 (the effective date of Ordinance No. 10), were entitled to 50% of the pension the officer received or would have received. Judge Saylor also determined that survivors of a police officer who died after February 11, 1970, regardless of that officer's retirement date, were entitled to receive 100% of the pension the officer received or would have received. Based on the above interpretation, Judge Saylor granted summary judgment to 14 of the 19 Appellees in the class. The City appealed to this court and we quashed the appeal as interlocutory, reasoning that the trial court's order left undetermined the matters of counsel fees, costs and punitive damages, and failed to direct the City to carry out the provisions of the order. City of Reading v. Templin, 88 Pa. Commonwealth Ct. 267, 489 A.2d 272 (1985). Following remand, the trial court issued an order directing payment of pensions to certain Appellees, awarding the successful Appellees 6% interest on the unpaid pensions, and directing the Board to pay the Appellees' counsel fees and costs. Appellants' motion for post-trial relief was denied; they have appealed to this court.

Appellants raise four issues for review: (1) whether the trial court erred in its interpretation of Ordinance No. 10; (2) whether the trial court's interpretation of the City's Police Pension Fund Ordinances is in error because it results in a violation of Pa. Const. art. III, § 26; (3) whether the trial court erred in awarding interest on unpaid pension benefits; and (4) whether the trial court erred in directing the Board to pay the Appellees' counsel fees and costs. We shall address these issues in order.

Appellants first argue that the trial court erred in interpreting Ordinance No. 10, asserting that the Ordinance was intended to apply only to survivors of police officers who were in active service on the date of enactment (February 11, 1970). We disagree. The language of the Ordinance

[ 127 Pa. Commw. Page 623]

    is clear, and it makes the date of death the determinative date for purposes of the pension. The language of Ordinance No. 10 can be paraphrased as follows: Survivors of a member of the police force or a member who retires on pension who dies on or after the effective date of this amendment, shall be entitled to receive the pension the member was receiving or would have been receiving had he been retired at the time of his death. In contrast to Ordinance No. 10, the 1966 Ordinance, No. 49, specifically limited its applicability to survivors of members who both retired and died after its effective date. Without any limiting language, Ordinance No. 10's plain meaning is that survivors of ...


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