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FOSTER v. MIFFLIN COUNTY RETIREMENT BOARD (05/18/73)

decided: May 18, 1973.

FOSTER
v.
MIFFLIN COUNTY RETIREMENT BOARD, ET AL.



Appeal from the Order of the Court of Common Pleas of Mifflin County in case of William M. Foster v. Mifflin County Retirement Board, Charles E. McNitt, Paul A. Sierer, Philip E. Gingerich, Harry E. Sheaffer and Evelyn Stetler, Members of said Board, No. 213 May Term, 1970.

COUNSEL

Harry B. Thatcher, for appellants.

D. M. Barron, with him Houck, Barron & Zimmerman, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers.

Author: Rogers

[ 9 Pa. Commw. Page 73]

This is an appeal from an order in a mandamus action entered in the Court of Common Pleas of Mifflin County in favor of William M. Foster, the plaintiff,

[ 9 Pa. Commw. Page 74]

    and against the defendant, Mifflin County Retirement Board, after a trial before President Judge R. Paul Campbell of the Court of Common Pleas of Centre County, Specially Presiding. The sole issue of fact tried below was whether William M. Foster's employment as a deputy sheriff of Mifflin County was terminated on December 13, 1969 by his voluntarily leaving that employment or whether he was discharged by the Sheriff. If his leaving the County's employ was voluntary he is entitled only to a return of his contributions to the County's retirement plan with interest, but if he was discharged he will receive retirement benefits under the plan.

The only direct testimony as to the circumstances of Foster's termination was his own account. This discloses that he had worked as a Deputy in the Sheriff's office for more than 19 years; that in the spring primary and at the Municipal Election in 1969 he stood for the then newly created office of District Justice and that he was nominated and elected. One of the qualifications, however, for that office was the attainment of a passing grade in an examination conducted on December 24, 1969. Foster believed that in order for him to pass the examination it would be necessary for him to attend a course of instruction conducted by the Department of Education of the Commonwealth every evening between the hours of 7 and 11 and all day Saturday, commencing December 1, 1969. According to Mr. Foster, as a result of his attendance at these classes and the necessity to do the assigned reading at night, he was unable efficiently to perform his full-time duties as a deputy sheriff. The Sheriff, after warning, discharged him. The Sheriff who had employed him and who terminated his employment was his brother, H. Fred Foster, and his replacement as deputy sheriff was another brother, Walter Foster. While the last

[ 9 Pa. Commw. Page 75]

    mentioned circumstances cast a shadow over the plaintiff's case, it is, on the other hand, supported by the fact that there was no certainty that he would finally qualify as a District Justice and by evidence that of the 300 persons elected to that office in the State at least two failed the examination and hence to qualify. In any event, the plaintiff's testimony as to his discharge was clear and unshaken by cross-examination.

The only person who testified for the defendant Retirement Board was the Chief Clerk of the County who acted as secretary of a special meeting of the Salary Board of Mifflin County held on December 16, 1969. Over objections of plaintiff's counsel, she was permitted to read a portion of the minutes of that meeting, and, still over objection, the minutes themselves were admitted, ...


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