Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Joseph H. Newhouse, Harry J. Foster and Vincent Varallo, individually and on behalf of themselves and all other Court Stenographers similarly situated, v. Board of Pensions and Retirement of the City of Philadelphia and The City of Philadelphia, No. 1108 September Term, 1968.
John M. McNally, Jr., First Deputy City Solicitor, with him Sheldon L. Albert, City Solicitor, for appellants.
Steven E. Angstreich, with him Krimsky, Luterman, Stein & Levy, P.C., for appellees.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Rogers and Blatt. Opinion by Judge Blatt.
This is an appeal by the Board of Pensions and Retirement of the City of Philadelphia and the City of Philadelphia (Appellants) from an adverse decision by the Court of Common Pleas of Philadelphia County.
In September of 1968, the Appellees, Joseph H. Newhouse, Harry J. Foster, and Vincent Varallo (now deceased), commenced a class action in mandamus to compel the City of Philadelphia to compute the pensions of Official Court Stenographers on the basis of both their base annual salaries and their transcription fees and to accept contributions into a pension fund with respect to such transcription fees. The class represented by the named Appellees consisted of all Official Court Stenographers employed by the Common Pleas Court of Philadelphia prior to July 1, 1969 and who retired or will have retired prior to June 1975. All members of the class have retired.
Appellees, and members of the class, performed two services in the course of their duties. First, they took notes of testimony in court proceedings for which they received a base annual salary. Second, they transcribed the notes of testimony for which they received fees in accordance with Section 8 of the Act of May 1,
[ 33 Pa. Commw. Page 831907]
, P.L. 135, as amended, 17 P.S. § 1810. Payment for both services was made by the City of Philadelphia, with the transcription fees being paid upon order of the presiding judge.*fn1
The narrow issue before us is whether transcription fees must be included in the pension base of the Appellees under the Municipal Retirement System Ordinance of 1956 (Ordinance), as amended. It is undisputed that the definition of "compensation" in Section 201.1(aa) of the Ordinance determines the basis for the computation of retirement pensions of employes of the City of Philadelphia. Section 201.1(aa) defines compensation as "[t]he full amount of salary paid for personal services to any employee of the City of Philadelphia as appears on the City payroll."
At the outset, we must examine the Appellees' contention that this case is controlled by our Supreme Court's decision in Rockwell v. York County Retirement Board, 405 Pa. 406, 175 A.2d 831 (1961). In that case, the Court concluded that under the Fourth Class County Retirement Law*fn2 the basis for computation of a court stenographer's pension benefits includes both the stenographer's salary and transcript and folio fees. The Court so concluded based upon the following reasoning:
Under Section 1623 of the 'County Code,'*fn3 the salary board . . . shall fix the compensation of all ...