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WALTERS v. CITY OF ALLENTOWN

April 22, 1993

CYNTHIA WALTERS, Individually and as parent and natural guardian of MICHAEL DANIELLE WALTERS, a minor
v.
CITY OF ALLENTOWN and JEANNE COSTELLO



The opinion of the court was delivered by: BY THE COURT; FRANKLIN S. VAN ANTWERPEN

 VAN ANTWERPEN, J.

 APRIL 22, 1993

 INTRODUCTION

 This is a declaratory judgment action seeking a declaration of the rights of the plaintiff, Michael Danielle Walters, under a pension plan established by the defendant, City of Allentown. We have before us a Motion for Summary Judgment filed by both defendants on March 10, 1993 and a Cross-Motion for Summary Judgment filed by plaintiff on March 22, 1993.

 FACTUAL BACKGROUND

 As conceded on page 1 of plaintiff's Brief and on pages 6 and 10 of defendants' Brief, the facts necessary to resolve this matter are not disputed. In an abundance of caution, whenever possible, we will summarize facts as they are set forth in plaintiff's brief. The plaintiff, Cynthia Walters, is the mother of a minor child named Michael Danielle Walters who was born on January 25, 1988. As acknowledged in a written Paternity Agreement *fn1" , dated October 18, 1988, the father of this child was one Michael Daniel Costello. In 1988, Michael Daniel Costello was a police officer for the City of Allentown. Officer Costello died of a heart attack on March 6, 1992 and was survived by his wife, defendant Jeanne Costello. On or about July 17, 1992, plaintiff requested benefits under the City of Allentown Police Pension Fund, but was denied the benefits because Officer Costello was survived by a wife who was entitled to the benefits. The denial was based upon Section 143.20 of the Codified Ordinances of the City of Allentown which provides:

 143.20 BENEFITS FOR SURVIVING SPOUSE OR DEPENDENT CHILDREN

 A. Death in the Line of Duty

 
If any police officer while in the actual performance of his or her duty is killed or so injured that he or she dies from the effects thereof, his or her surviving spouse shall be entitled to receive a pension equivalent to one-half (1/2) the salary received by the officer at the time of death, and any service increment the officer may have been entitled to at the time of death. (12580 § 1 12/7/83)
 
In case there is no surviving spouse, or after the death of the surviving spouse, or in case of her or his remarriage, the pension and service increment shall be paid to the guardian of the deceased officer's dependent children, if any, without abatement until the youngest child reaches the age of eighteen (18) years, after which all pension and service increment rights shall cease, with the exception that after the last child has reached the age of eighteen (18) years, then the surviving spouse who has since remarried, at this time will once again have his or her pension rights as a surviving spouse reinstated for the remainder of his or her life. (12580 § 1 12/7/83)
 
No surviving spouse who has for one (1) year or upwards previous to the death of the police officer, wilfully or maliciously deserted the police officer shall have the right to claim any pension or service increment under the provision of this Article. (12580 § 1 12/7/83)

 Allentown, Pa., Code § 143.20. Had Officer Costello not been survived by a wife, plaintiff's minor child, Michael Danielle Walters, would have shared in the pension fund regardless of her status as being born out of wedlock. Affidavit of Mayor ...


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