William C. Porter, and A. L. Zeman, Washington, for appellant.
Alexander R. Curran, Washington, for appellees.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Gunther, JJ.
[ 172 Pa. Super. Page 438]
Appellant sued the members of The Officers and Employees Retirement Board of the City of Washington, a city of the third class, in assumpsit to recover $209.12 on account of retirement pay under an ordinance providing for such compensation after 20 years of service. The city filed preliminary objections in the nature of a demurrer; the facts were stipulated; and the court below sustained the demurrer and entered judgment for defendant.
The Ordinance was adopted on February 1, 1950, and was based upon the Act of May 23, 1945, P.L. 903, 53 P.S. § 12198-4371 et seq., the pertinent section of
[ 172 Pa. Super. Page 439]
which is printed in the margin.*fn1 The ordinance followed the Act in most particulars, except that the provision in the Act requiring continued contributions only to the age of 55 was altered to require contributions to the age of 60. 'Employe', was defined, both by the Act, § 1, 53 P.S. § 12198-4371, and the ordinance as 'a person in the service of the city, who is either, or who is not now adequately protected under all circumstances by pensions authorized by the laws of this Commonwealth and in force at the time of the passage of this act.'
Appellant was an employe in the office of the city treasurer from March 21, 1928 to May 15, 1951, when he voluntarily retired, having previously paid several contributions required by the ordinance. He was then more than 55 years of age and less than 60. From 1928 until the first Monday of January, 1944*fn2 the city treasurer was the tax collector for the city and school district and was paid a nominal salary of $100 a year.
[ 172 Pa. Super. Page 440]
In addition he received a substantial commission on the taxes collected by him, out of which he maintained his office and paid all its expenses, including the salary or wages of appellant and his other employes. His employes were appointed by him, without action or confirmation by the city authorities, and were subject to the sole and exclusive control of the treasurer, who fixed their salaries, assigned their duties, and prescribed their hours of work. The relation of the treasurer to the city, his compensation, the appointment of his employes and their compensation were regulated by statutes in force during appellant's employment, a partial list of which are collected in a footnote.*fn3
The date upon which the legal relations between the employes of the treasurer and the city were changed is left in some doubt. At one point in the opinion of the court below there is the statement: 'This situation [referring to the relationship described above] continued up until the first Monday of January, 1944, at which time the City Treasurer was placed on a straight salary basis, and he and his clerks and deputies were thereafter paid out of City funds as other City employes were paid.' At another place the learned judge, referring to an ordinance which provided salaries of $20 a month for the treasurer's deputy and clerk, stated: 'There never was any Ordinance passed or in effect, authorizing the employment or payment of any clerks or deputies in the office of the City Treasurer, ...