Opinion
December 8, 1949.
David B. Coxe, Jr., for Plaintiff.
C. Edward Duffy (James L. Latchum of Counsel) for Defendants.
LAYTON, J., sitting.
Motion to dismiss Plaintiff's petition for mandamus seeking to establish his right to a pension. Motion granted.
In May, 1924, Petitioner joined the Delaware State Police. In November of that same year, while serving in the line of duty, he received a bad injury resulting in a thirty percent disability to his leg. This injury did not force his retirement, however, and it was not until May, 1940, that he was asked to, and did, resign or voluntarily retire. On July 7, 1949 he made demand upon the State Police Pension Board for a pension of $62.50 monthly, being one-half his salary when injured. Accompanying his demand was a physician's certificate certifying his disabilities. The Board refused this demand on July 20, 1949, and on August 8, 1949 this action was instituted.
The record fails to reveal whether Plaintiff resigned or retired.
Petitioner bases his right upon Chap. 262, Vol. 41, Laws of Delaware, Sec. 4 of which reads as follows: "That any former, present or future member of the State Highway Police or the State Police, who has heretofore received or who may hereafter receive permanent injuries in the performance of his duties, shall upon certification of a physician selected by the said Board or by said injured person, be entitled to receive a pension equal to one-half of his salary at the time said injury was received; provided, however, that no such pension shall be paid as long as such person is regularly employed as a State Police."
Defendant's motion to dismiss is grounded upon Sec. 5129, Revised Code of Delaware, 1935, as amended by Vol. 46, Laws of Delaware, Chap. 115, which provides: * * * no action based on a statute * * shall be brought after the expiration of three years from the accruing of the cause of such action; * * *."
LAYTON, Judge.
The question presented by this motion is whether or not the Statute of Limitations of three years has run against Plaintiff's claim. In my opinion it has. Dillon v. Board of Pension Commissioners, 18 Cal.2d 427, 116 P.2d 37, 136 A.L.R. 800; Barney v. City of Lincoln, 144 Neb. 537, 13 N.W.2d 870.
Plaintiff relies upon a line of authorities which superficially support his position. Upon closer examination, however, the facts of these cases reveal that, prior to the bringing of petitioner's suit to recover his pension, his right thereto had been established. Dryden v. Board of Pension Commissioners, 6 Cal.2d 575, 59 P.2d 104; Donnellan v. O'Dwyer, 189 Misc. 121, 67 N.Y.S.2d 642. This distinguishing feature is clearly apparent, and is commented on at length, in the Dillon case, 116 P.2d at page 40, 136 A.L.R. 800. See also 189 Misc. 121., 67 N.Y.S. 2d at page 650.[1] What the result would be here had Plaintiff established his right to a pension within three years of his retirement and then failed to institute an action to recover an installment for more than three years thereafter is a question not raised by this motion.
For the reasons just stated I have no alternative but to grant the motion to dismiss.
Superior Court for New Castle County, No. 588, Civil Action, 1949.