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YORK PAID FIREMEN'S PENSION FUND BOARD YORK CITY v. FREDERICK J. ORENDORFF (09/09/80)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: September 9, 1980.

YORK PAID FIREMEN'S PENSION FUND BOARD OF YORK CITY, PA., APPELLANT
v.
FREDERICK J. ORENDORFF, APPELLEE

Appeal from the Order of the Court of Common Pleas of York County in case of Frederick J. Orendorff v. York Paid Firemen's Pension Fund Board, No. 76-S-2640.

COUNSEL

Donald B. Hoyt, Assistant City Solicitor, for appellant.

James B. Leckrone, with him, Carl H. Cordes, for appellee.

Judges Mencer, Rogers and Craig, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 53 Pa. Commw. Page 630]

The sole issue in this appeal by Frederick J. Orendorff (claimant) is whether the York Paid Firemen's Pension Fund Board (Board) should include longevity increments*fn1 paid to a fireman in computing his retirement pension. Section 6 of York City Ordinance 16-1947, as amended, York Administrative Code § 171.06 (1947), provides that claimant shall receive a pension equal to "one-half the yearly salary of such member at the time of his retirement." "Salary" is not defined in the ordinance, and we are asked to determine the dimensions of that term.*fn2

Claimant, relying on Newhouse v. Board of Pensions, 33 Pa. Commonwealth Ct. 81, 380 A.2d 1315 (1977); Kelly v. Loveland, 141 Pa. Superior Ct. 455, 15 A.2d 411 (1940); and Christ v. Berks City Retirement Board, 36 Berks 169 (1943), argues that the term "salary" includes the entire compensation paid to him for his services rendered to the fire department. Although we agree that, in the abstract, "salary" is

[ 53 Pa. Commw. Page 631]

    broad enough to encompass longevity increments, nevertheless, in the pension area,

[t]he connotation to be placed upon the term 'salary' must depend upon the sense in which it is used and the purpose sought to be achieved. Here we are concerned with placing an interpretation upon it which 'harmonizes with the spirit and purpose of the retirement acts': Kane v. Policemen's Fund et al., 336 Pa. 540, 546, 9 A.2d 739, 742.

Kelly v. Loveland, supra at 462, 15 A.2d at 415.

With this in mind, we note that Section 4 of the ordinance, York Administrative Code § 171.04, provides that each member must contribute to the fund "the amount of four percent of the salary of each paid member of the Fire Department. . . ." In Rockwell v. York County Retirement Board, 405 Pa. 406, 415 & n. 12, 175 A.2d 831, 836 & n. 12 (1961), our Supreme Court concluded that the retirement benefit of a court stenographer was to be computed on the basis of salary plus folio and transcript fees, in part because " [c]ontribution to the system by a court stenographer must be calculated on the salary plus folio and transcript fees." (Emphasis added.) Likewise, here, we believe that it would be inconsistent, inequitable, and contrary to the purpose of the pension law for claimant to receive a pension computed on the basis of his salary plus longevity increments, while contributing to the system solely on the basis of his salary.*fn3

Unfortunately, we are unable to determine from this record how contributions to the fund are made. Therefore, we must remand this matter to the court below, with the instruction that, if claimant has contributed to the fund on the basis of his salary plus

[ 53 Pa. Commw. Page 632]

    longevity increments, then he is entitled to receive a pension computed on the same basis. If, however, he has contributed on the basis of his salary without longevity increments, then he would be entitled to a pension only on that basis.

Order vacated and record remanded.

Order

And Now, this 9th day of September, 1980, the order of the Court of Common Pleas of York County in the above captioned matter, dated July 6, 1979 and October 31, 1979, is hereby vacated, and the record is hereby remanded to said court for proceedings consistent with this opinion.

Disposition

Order vacated and case remanded.


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