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RAY MCVAY v. CITY WASHINGTON (11/20/89)

decided: November 20, 1989.

RAY MCVAY, ROY BLACKA, THOMAS MEARS, WILLIAM MOULTON, WILLIAM ROSS AND PAUL MAUST, APPELLANTS,
v.
THE CITY OF WASHINGTON, FIREMEN'S PENSION FUND AND ITS BOARD OF MANAGERS, APPELLEES



Appeal from Common Pleas Court, Wilmington County, Honorable Samuel Rodgers, Judge.

COUNSEL

Frank C. Carroll, P.C., Washington, for appellants.

John Patrick Smider, Phillips & Faldowski, P.C., Washington, for appellees.

Craig and Doyle, JJ., and Narick, Senior Judge.

Author: Craig

[ 129 Pa. Commw. Page 534]

Six retired firemen (retirees), all formerly employed by the third class City of Washington and members of the Firemen's Relief Association, appeal an order of the Court of Common Pleas of Washington County denying the retirees' request for payment of service increments, retroactively and in the future, pursuant to section 4322 of The Third Class City Code.*fn1 We affirm.

There is no dispute that the association voted to transfer its pre-existing pension fund, to which the retirees had contributed, into a pension fund established by the City of Washington, as required by section 4320 of the Code, 53 P.S. ยง 39320. However, the city delayed in taking over the fund until November 9, 1979, when the Common Pleas Court of Washington County ordered the transfer, effective on January 1, 1980. The retirees have been receiving the pension benefits to which they were and are entitled as of their respective retirements, all of which occurred before January 1, 1980.

In addition to the pension benefits which are authorized to be paid from the city's pension fund under section 4320 of the Code, section 4322(b) of the Code provides for the

[ 129 Pa. Commw. Page 535]

    benefit of a "service increment," which was not available to the retirees under the association's pension fund.

The retirees instituted an action in mandamus to compel the city's pension fund to pay them service increments totaling approximately $56,250, plus additional service increments in the future, at approximately $30 per month. The retirees base their action upon their willingness to make an additional contribution of $1 per month for each month of their respective service before retiring. The trial court ruled in favor of the city, and pursuant to the filing of post-trial motions, the court en banc sustained the decision of the trial judge. The retirees' appeal to this court followed.

The sole issue, one of first impression, is whether the association's transfer of its pension fund to the city's pension fund entitles past contributors to receive, retroactively, the additional service increment offered by the city's fund.

Our scope of review of a common pleas court order dismissing a complaint in mandamus is limited to a determination of whether the trial court committed an error of law or an abuse of discretion. Thelin v. Borough of ...


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