Appeal from the Order of the Court of Common Pleas of Westmoreland County in case of Paul Del Vitto v. Ted Simon, John W. Regoli and William R. Davis, County Commissioners for Westmoreland County, Pennsylvania, No. 2221 of 1975.
Irving L. Bloom, County Solicitor, for appellants.
Edgar P. Herrington, Jr., for appellee.
Judges Wilkinson, Jr., DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.
[ 43 Pa. Commw. Page 403]
Appellants, the County Commissioners for Westmoreland County (Commissioners) appeal an order of the common pleas court denying their motions for a new trial or for judgment n.o.v. following a jury verdict rendered in favor of appellee (plaintiff) in his mandamus action to recover compensation for services rendered the county as a deputy sheriff. We reverse.
The facts are not in dispute. Plaintiff was originally hired on January 1, 1960 as a deputy sheriff and has served continuously in that capacity except as otherwise noted.
[ 43 Pa. Commw. Page 404]
By resolution, adopted January 27, 1972, the Commissioners set up a retirement system in accordance with the County Pension Law, Act of August 31, 1971, P.L. 398, 16 P.S. § 11651 et seq. Pursuant to the compulsory retirement provision*fn1 of that resolution, plaintiff was forced into retirement on June 5, 1973. Plaintiff was again on duty as a deputy sheriff on April 9, 1975 as a result of an amending resolution adopted by the Commissioners on December 12, 1974, since under the amended terms, persons in plaintiff's position were eligible for a yearly maximum of 30 days' employment on a per diem basis.
On December 12, 1976, a third and final resolution regarding the retirement plan was adopted by the Commissioners, this one rescinding, effective November 24, 1976, the retirement plan instituted in 1972. At that time plaintiff was rehired on a per diem basis and so paid until March 10, 1977 at which time he was returned to the regular payroll.
During the period from April 9, 1975 to November 24, 1976 plaintiff, under the amended retirement plan entitled to only 30 days per year per diem employment, continued to work as before on a regular basis although he was only paid for 30 days in 1975 and another 30 days in 1976. The jury's verdict was based on the days of that period during which plaintiff performed his regular duties but received no compensation.
The governing statutory law is to be found in The County Code (Code), Act of August 9, 1955, P.L. 323, as amended, 16 P.S. § 101 et seq. In particular, Sections 1623 ...