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MICHAEL KRIVOSH AND GALE W. MCCLIMANS v. CITY SHARON (12/18/78)

decided: December 18, 1978.

MICHAEL KRIVOSH AND GALE W. MCCLIMANS, APPELLANTS
v.
CITY OF SHARON, APPELLEE



Appeal from the Order of the Court of Common Pleas of Mercer County in case of Michael Krivosh, Michael C. Croft and Gale McClimans v. City of Sharon, No. 1153 C.D. 1976.

COUNSEL

Charles S. Hersh, with him P. Raymond Bartholomew, and Cusick, Madden, Joyce and McKay, for appellants.

John J. Regule, for appellee.

Judges Rogers, Blatt and MacPhail, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 39 Pa. Commw. Page 298]

This is the appeal of Michael Krivosh and Gale W. McClimans*fn1 from an order of the Mercer County Court of Common Pleas entering summary judgment against them and in favor of the City of Sharon in their suit in assumpsit against the City for accumulated sick pay benefits allegedly wrongfully withheld. We affirm the order of the court below and adopt relevant portions of the able and comprehensive opinion of the Honorable John Q. Stranahan, as follows:

The plaintiffs, three retired police officers of the City of Sharon, filed an action in assumpsit, seeking compensation for accumulated sick pay benefits they claim are now due under Section 3(e) of City Ordinance 20-64, adopted June 17, 1964. The relevant portions of Ordinance 20-64 are as follows:

[ 39 Pa. Commw. Page 299]

Section 3. Sick Benefits.

(C) All other employees [other than members of the fire department] of the City of Sharon may accumulate sick leave for a period not to exceed five (5) years of employment, or a total of sixty (60) days. The provisions of this section shall not be construed to limit or to withdraw sick leave already earned prior to this amendment. . . . (E) All city employees upon retirement . . . , who have accumulated sick leave during their employment in excess of fifteen (15) days, shall be entitled to a lump sum payment amounting to sixty (60) per cent of the accumulated days of sick leave, based upon the employee's salary at the time of death or retirement.

The plaintiff, Michael Krivosh, retired on May 16, 1976. The plaintiff, Michael Croft, retired on July 19, 1976. The plaintiff, Gale McClimans, retired on May 14, 1975. Plaintiffs Krivosh and Croft were paid their accumulated sick leave benefits in accordance with an agreement between the City of Sharon and the Rose of Sharon Lodge No. 3, Fraternal Order of Police, which was effective as of January 1, 1976. The plaintiff McClimans was paid his accumulated sick leave benefits in accordance with an agreement between the City of Sharon and the Rose of Sharon Lodge No. 3, Fraternal Order of Police, dated February 27, 1975. The relevant provisions of the two agreements are identical to each other and read as follows:

All policemen shall be permitted to accumulate sick leave benefits of twenty (20) days per year up to a maximum of

[ 39 Pa. Commw. Page 300]

    one hundred twenty (120) days. In event of retirement, each policeman shall receive reimbursement at the rate of seventy-five (75%) per cent of their annual base salary for all sick days accumulated at the time of retirement or death, up to a maximum of one hundred twenty (120) days.

Each agreement also contains the following clause:

All ordinances or parts of ordinances inconsistent with this agreement ...


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