Appeal from the Order of the Court of Common Pleas of Lawrence County in case of County of Lawrence v. Robert E. Foht, County Controller of Lawrence County, No. 140 of 1975, M.D.
Chris J. Mitsos, with him Glenn McCracken, Jr., and Braham, Mitsos & McCracken, for appellant.
Frank G. Verterano, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Rogers and Blatt. Opinion by Judge Blatt.
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This is an appeal from an order of the Court of Common Pleas of Lawrence County directing Robert E. Foht (Appellant) to repay to the County of Lawrence
[ 33 Pa. Commw. Page 381]
(County) the salary which was paid to him for serving as Secretary of the County Retirement Board while he was also serving as County Controller.
The Appellant has been Secretary of the Retirement Board since 1950 and County Controller since January 1964, drawing compensation for both offices since 1964. In 1975 the County Solicitor rendered an opinion that Act 113 of 1971*fn1 prohibited the County Controller from receiving any compensation above that fixed for the office of Controller by that act, and he held that the additional annual payments made to the Controller as Secretary of the Board violated Article III, Section 27 of the Pennsylvania Constitution which forbids post-election increases in salary. On appeal to the Court of Common Pleas of Lawrence County, the case was submitted upon an agreed statement of facts, and the Appellant was directed by the Court to repay his total salary in the amount of $13,224.00 for serving as Secretary of the Retirement Board for the years 1972 to 1975, inclusive. It is this order from which the Appellant here appeals.
The County Pension Law,*fn2 which was enacted in 1971, provides that the Controller shall be the Secretary of the Retirement Board, and that for such services he shall receive a salary fixed by the County's salary board. Act 113, however, which was enacted later in the same year, restricts the salary of all county officers to the amount prescribed in that statute, whether for services performed for the county or for any other governmental unit and further provides that all fees and commissions received in the conduct of any county office be paid directly to the county. Section 4 of the earlier enacted County Pension Law provides that Retirement Board members are not to
[ 33 Pa. Commw. Page 382]
receive any compensation, but Section 5 of that Law provides:
The county controller or the chief clerk of the county, as the case may be, shall be the secretary of the board. . . . The compensation of the secretary shall be fixed by the ...