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SCHMIDT v. ALLEGHENY COUNTY RETIREMENT BOARD (11/10/58)

November 10, 1958

SCHMIDT, APPELLANT,
v.
ALLEGHENY COUNTY RETIREMENT BOARD



Appeal, No. 239, March T., 1958, from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1956, No. 2913, in case of Edward Lewis Schmidt v. Retirement Board of Allegheny County. Judgment affirmed.

COUNSEL

Robert F. Banks, with him Reed, Smith, Shaw & McClay, for appellant.

John P. Hester, Solicitor, for Allegheny County Employes Retirement System, appellee.

Before Jones, C.j., Bell, Musmanno, Jones and Cohen, JJ.

Author: Cohen

[ 394 Pa. Page 106]

OPINION BY MR. JUSTICE COHEN.

The appellant, Edward Lewis Schmidt, filed a complaint in mandamus to compel the Retirement Board of Allegheny County to pay him a retirement allowance. The Retirement Board filed an answer admitting the material allegations of fact in the complaint, whereupon Schmidt moved for judgment on the pleadings. The lower court refused Schmidt's motion and instead entered judgment for the defendant. This appeal followed.

Schmidt was employed by the County of Allegheny from June 21, 1916, to December 31, 1934, primarily as an engineer in the planning division of the Department of Public Works. During this period he made regular contributions to the county retirement system. On December 31, 1934, he resigned from the employ of the county and thereafter withdrew all of his contributions from the retirement system.

[ 394 Pa. Page 107]

On November 15, 1936, Schmidt again accepted employment with Allegheny County and continued in the county service until February 28, 1939, when for the second time he voluntarily resigned. During this second term of employment he made all the required contributions to the retirement system and left the amount so paid on deposit with the fund after his separation from the service. Even though on the date of his second resignation Schmidt had served in the employ of the county for more than twenty years, he was not then eligible to receive a retirement allowance under the applicable retirement law since he was not sixty years of age and had not repaid the retirement contributions for 1916-1934 which he had withdrawn.

Thereafter, for sixteen years Schmidt was employed by the Department of Highways of the Commonwealth of Pennsylvania, retiring in January, 1955, with a retirement allowance from the State Employes' Retirement System of the Commonwealth.

On February 7, 1955, Schmidt entered the employ of the county for the third time. But within three weeks, after making one payment to the retirement fund, he voluntarily retired. In the course of this short period of employment he attempted to obtain retirement credit for his 1916-1934 employment with the county by tendering to the Retirement Board the amount of the contributions withdrawn with accrued interest. The board refused Schmidt's tender because he was receiving a retirement ...


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