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POWELL v. ALLEGHENY COUNTY RETIREMENT BOARD (10/03/68)

decided: October 3, 1968.

POWELL
v.
ALLEGHENY COUNTY RETIREMENT BOARD



Appeal from judgment of Court of Common Pleas of Allegheny County, July T., 1965, No. 3456, in case of Sinclair T. Powell v. Retirement Board of Allegheny County.

COUNSEL

Donald L. McCaskey, with him Alan Bruce Bowden, Anthony J. Martin, Solicitor, and Buchanan, Ingersoll, Rodewald, Kyle & Buerger, Special Counsel, for appellant.

Gilbert J. Helwig, with him Thomas Todd, Mayer Sniderman, and Reed, Smith, Shaw & McClay, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen.

Author: Cohen

[ 431 Pa. Page 399]

This is an appeal by the Retirement Board of Allegheny County (Board) from the judgment of the Court of Common Pleas of Allegheny County requiring the Board to pay appellee a retirement allowance of $360.94 per month, commencing December 1, 1967, and in addition pay $58,572.52 for back payments of retirement benefits owed to appellee up to and including the month of November, 1967.

This mandamus action has its genesis in the following factual background. Appellee was employed by the Allegheny County Planning Commission in 1924. He was actively employed by the Planning Commission until May 7, 1955, when he was arrested on a homicide charge arising out of the death of his wife.

Immediately following his arrest, appellee forwarded a letter to the executive director of the Planning Commission requesting a six month leave of absence from his position. This request was never acted upon by the Planning Commission, nor did the Planning Commission notify appellee or indicate that there had been any change made in the status of appellee as an employee of the county.

On October 16, 1956, appellee was tried, convicted and sentenced to Rockview Penitentiary for a period of three years. As a result of his imprisonment, he performed no services for the Planning Commission from May 7, 1955, until the present time.

While appellee was incarcerated, he repeatedly offered through his attorney and others to pay the retirement fund contributions necessary to protect his eligibility to receive retirement benefits when he reached the age of sixty on November 1, 1957. These offers of payment were refused by the Board.

On November 29, 1957, appellee, while still confined to prison, sent a letter to the secretary of the

[ 431 Pa. Page 400]

Allegheny County Retirement Board indicating once again his desire to make the necessary monthly contributions which had not been paid during his absence but ...


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