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HARVEY v. ALLEGHENY COUNTY RETIREMENT BOARD (06/29/60)

June 29, 1960

HARVEY
v.
ALLEGHENY COUNTY RETIREMENT BOARD, APPELLANT.



Appeal, No. 130, March T., 1960, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1953, No. 2472, in case of Gilbert Newman Harvey v. Retirement Board of Allegheny County. Judgment reversed.

COUNSEL

Patrick J. Corr, for appellant.

Frank Reich, for appellee.

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

Author: Cohen

[ 400 Pa. Page 402]

OPINION BY MR. JUSTICE COHEN.

By this action in mandamus, the appellee, Harvey, seeks to secure for himself the benefits of the retirement allowance provided by the County of Allegheny. See Harvey v. Allegheny County Retirement Board, 392 Pa. 421, 141 A.2d 197 (1958).

The appellee maintains that being fifty years of age and with twenty years of service as an employee of the county, and having been separated from service through no cause or act of his own, he is entitled to the retirement allowance under the provisions of the Act of May 2, 1929, P.L. 1278, as amended, 16 PS 4701 et seq.

Specifically, the Employes Retirement System section of the Second Class County Code, Act of July 28, 1953, P.L. 723, art. XVII, § 1710, as amended, 16 PS § 4710(b), provides: "... Provided, That when any county employe has twenty or more years service, not necessarily continuous, and has reached the age of fifty years or upwards, and shall be separated from the service of the county or county institution district by

[ 400 Pa. Page 403]

    reason of no cause or act of his or her own, upon application to the board he or she shall thereafter receive, during life, except as hereinafter provided, a retirement allowance plus a service increment if any, in accordance with the provisions of Section 1712...."

Harvey was notified of his dismissal on February 28, 1951 by a letter which stated: "Your dismissal is due to your complete incompatibility to accept the obligations consistent with your employment." The lower court found, however, that the testimony did not support the reason for dismissal contained in the letter and determined that Harvey was dismissed because of no cause or act of his own. Accordingly, the lower court ruled that Harvey qualified under the provisions of the Allegheny County Retirement Act. We cannot agree with the application of the quoted language of the Act to the facts as found by the court below.

The lower court found that the appellee during 1951 requested that he be placed on pension. The testimony further established that the appellee continually asked to be "fired," stating that he had a new position to which he desired to go, and that in order to secure his pension it was necessary for him to be dismissed. Numerous times Harvey told his supervisors, "I want to get ...


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