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TOWNSHIP ROSS v. HARRY E. MCDONALD (07/01/81)

decided: July 1, 1981.

TOWNSHIP OF ROSS
v.
HARRY E. MCDONALD, RALPH ANDERSON AND PAUL W. BRANDT. PAUL W. BRANDT, APPELLANT



Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Township of Ross v. Harry E. McDonald, Ralph Anderson and Paul W. Brandt, No. G.D. 78-17022.

COUNSEL

Richard D. Klaber, Dickie, McCamey & Chilcote, for appellant, Paul W. Brandt.

Fred E. Baxter, Jr., for appellant, Harry E. McDonald.

Michael A. Donadee, for appellant, Ethel Anderson, widow of Ralph Anderson.

John M. Means, Markel, Schafer & Means, for appellee.

Judges Blatt, Craig and MacPhail. President Judge Crumlish and Judges Mencer, Blatt, Williams, Jr., Craig, MacPhail and Palladino. Judge Rogers did not participate. Opinion by Judge Craig. Dissenting Opinion by Judge MacPhail. Judge Palladino joins in this dissent. Judge Mencer joins in this dissent.

Author: Craig

[ 60 Pa. Commw. Page 291]

Paul W. Brandt, Esquire, a former solicitor of the Township of Ross, Allegheny County, has appealed from an order of the Court of Common Pleas of Allegheny County entered in a declaratory judgment action brought by the township against the former solicitor and two former township commissioners. The action sought determination of the legality of the pension plan coverage which the township board of commissioners, as governing body, had adopted with respect to the appointed solicitor and the elected commissioners. The common pleas court found the coverage to be unlawful. We here decide the appeal of the solicitor; the appeal on behalf of the commissioners is decided separately.

Although the township instituted the action (after a taxpayers' equity suit raising the same issue had been dismissed for insufficient service), this case has not proceeded in the usual adversary vein; because

[ 60 Pa. Commw. Page 292]

    the township initially filed no brief with us, we found it necessary to request reargument, upon which the township filed a brief and appeared for oral argument.

The facts are undisputed, within the limits of such record as the parties have developed. The township commissioners, as governing body, by resolution of November 11, 1957 adopted a pension plan agreement covering "all permanent employees presently on the payroll of the township," along with future employees, defining "employee" as follows:

Any person who is a full time employee of the township of Ross and who is compensated therefor on the basis of an hourly, weekly, bi-weekly, semi-monthly, monthly or annual compensation. Elected officials are not eligible to participate in the plan.

Although the original plan did not exclude the solicitor expressly, as it did the elected officials, the solicitor initially was not covered, a point confirmed by examination of later amendments.

The first amendment of the plan, effective January 1, 1961, deleted the provision making elected ...


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