decided: July 1, 1981.
TOWNSHIP OF ROSS
HARRY E. MCDONALD, RALPH ANDERSON AND PARK W. BRANDT. ETHEL ANDERSON, WIDOW OF RALPH ANDERSON, 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.
Michael A. Donadee, for appellant, Ethel Anderson, widow of Ralph Anderson.
Fred E. Baxter, Jr., for appellant, Harry E. McDonald.
Richard D. Klaber, Dickie, McCamey & Chilcote, for appellant, Paul W. Brandt.
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 MacPhail. Judge Williams, Jr. dissents. Concurring Opinion by President Judge Crumlish.
[ 60 Pa. Commw. Page 307]
This is an appeal from an order of the Court of Common Pleas of Allegheny County entered in a declaratory judgment action brought by the Township of Ross (Township) against Harry E. McDonald, Ralph Anderson (Appellant) and Paul W. Brandt.*fn1
The Township Board of Commissioners (Board) established a pension plan for employees of the Township on November 11, 1957. The plan specifically excluded elected officials. On August 7, 1961, the Board amended the plan to provide for participation by elected officials.*fn2
[ 60 Pa. Commw. Page 308]
Appellant served as a duly elected Township Commissioner from January 1952 to June 1970. He has qualified for benefits under the Township pension plan which was fully funded by Township revenues.
As the result of a suit in equity that alleged the benefits paid to Appellant and others were illegal and that was dismissed for failure to make proper service upon the named defendants, the Township suspended payment of benefits to the three retirees in question and sought a ruling as to the propriety of the payment of benefits to them. The precise issue addressed by the lower court was whether the Board had the power to enact a pension plan for themselves.
In his opinion, the trial judge examined Sections 605 and 1502 of The First Class Township Code (Code)*fn3 relied upon by Appellant as statutory authorization
[ 60 Pa. Commw. Page 309]
for the Township to provide pensions for Township commissioners. The trial judge concluded that both of those Sections of the Code were restricted to "employees" of the Township and that Township commissioners, being elected officials, were not employees entitled to benefit from Township pension plans. For that reason, the trial judge held the Township resolution sub judice to be void ab initio.
In his opinion, the trial judge also addressed the issue of whether the amendment to the plan was void because it was adopted by commissioners who would benefit therefrom under the general principles of law that a public official may not use his official power to further his own interests. Genkinger v. New Castle, 368 Pa. 547, 84 A.2d 303 (1951). It has also been held by our Supreme Court that a member of a governing municipal body may not vote on any question involving his pecuniary interest if that be immediate, particular and distinct from the public interest. Commonwealth v. Raudenbush, 249 Pa. 86, 94 A. 555 (1915). Since we are of the opinion that the amendment to
[ 60 Pa. Commw. Page 310]
the Township pension plan is invalid because it was adopted in violation of these well founded and long standing principles of law, we will not resolve the question of whether township commissioners are employees of the Township within the meaning of Sections 605 and 1502 of the Code.
At the time the Township amended its pension plan, Section 603 of the Code, 53 P.S. § 55603 read as follows:*fn4
No township shall increase or diminish the salary, compensation, or emoluments of any elected officer after his election. Appointed officers and employes of the township shall receive such compensation for their services as the township commissioners shall prescribe.
That statutory language is almost identical with that found in Article 3, Section 13 of the Pennsylvania Constitution of 1874, now Section 27 of Article III of our present Constitution which similarly limits enactments of the General Assembly.*fn5
Our Supreme Court has characterized retirement benefits as deferred compensation and, in effect, part
[ 60 Pa. Commw. Page 311]
of the salary of elected officials. Retirement Board of Allegheny County v. McGovern, 316 Pa. 161, 174 A. 400 (1934). In Hendricks v. East Rockhill Township, 1 Pa. D. & C. 3d 763, 771 (1977), the Court of Common Pleas of Bucks County characterized a pension plan for supervisors of a township of the second class as "additional compensation" and held that its adoption was in violation of the principles of law set forth in Raudenbush and reaffirmed in Genkinger.
We conclude that the Township commissioners, by amending their pension plan to include themselves as beneficiaries thereof at Township expense, were increasing their compensation or emoluments*fn6 of office in violation of the plain language of Section 603 of the Code which prevented them from taking such action.
We will, therefore, affirm the lower court's order as to Appellant.
And Now, this 1st day of July, 1981 the order of the Court of Common Pleas of Allegheny County, dated June 6, 1979, is hereby affirmed to the extent that it orders the Township of Ross not to pay a pension to Ralph Anderson.
Judge Williams, Jr. dissents.
Concurring Opinion by President Judge Crumlish:
I concur in the majority's able opinion and would emphasize that the common law principles concerning
[ 60 Pa. Commw. Page 312]
conflicts of interest addressed in our recent decision of City Council Members v. Consumers Education and Protective Association, 58 Pa. Commonwealth Ct. 444, 428 A.2d 711 (1981), were subject to the peculiar constitutional and legislative mandates of home rule and municipal self-government for Philadelphia and therefore, in my judgment, present no inconsistencies.