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JEAN CHUDD v. CITY PHILADELPHIA AND BOARD PENSIONS AND RETIREMENT CITY PHILADELPHIA (02/08/83)

decided: February 8, 1983.

JEAN CHUDD, EXECUTRIX OF THE ESTATE OF ABRAHAM PILZER, APPELLANT
v.
CITY OF PHILADELPHIA AND BOARD OF PENSIONS AND RETIREMENT OF THE CITY OF PHILADELPHIA, APPELLEES



Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Abraham Pilzer v. City of Philadelphia and Board of Pensions and Retirement of the City of Philadelphia, No. 552 November Term, 1980.

COUNSEL

Michael Silver, with Thomas F. McDevitt, for appellant.

Joseph C. Crawford, with him Jill A. Douthett, Deputy City Solicitor, Jack B. Katz, Assistant City Solicitor, and Alan J. Davis, City Solicitor, for appellees.

Judges Blatt, Craig and Doyle, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 71 Pa. Commw. Page 610]

Abraham Pilzer, by his executrix,*fn1 appeals from a Philadelphia Court of Common Pleas order dismissing his petition for review as untimely filed.*fn2 That petition had challenged the Philadelphia Pensions and Retirement Board's refusal to adjust the final salary figure upon which the board calculated Mr. Pilzer's disability pension. We vacate and remand.

[ 71 Pa. Commw. Page 611]

Mr. Pilzer was the executive director of the board until January 31, 1978, the effective date of his retirement. Later that year, in December of 1978, the board awarded him a service-connected disability pension retroactive to February 1, 1978; in accordance with section 206.3 of Philadelphia's retirement system ordinance,*fn3 that pension was to equal seventy percent of $27,500, the final salary amount actually paid to him.

As both parties concede in their briefs, approximately four months after Mr. Pilzer's retirement on January 31, 1978, the board increased the executive directorship salary from $27,500 to $37,500.

Through his attorney, Mr. Pilzer wrote to the board on November 9, 1979, claiming that it had made the salary increase retroactive to January 1, 1978, thirty days before the effective date of his retirement, and that he therefore was entitled to a pension based upon $37,500 as final compensation. The letter vaguely indicated that Mr. Pilzer had only learned of the retroactive nature of the salary increase in late 1979, based upon a conversation he had with a board employee.

The board did not respond to Mr. Pilzer's letter. On November 5, 1980, he filed a petition for review with the common pleas court claiming, among other things, that the board had made the directorship salary increase retroactive to January 1, 1978; the

[ 71 Pa. Commw. Page 612]

    board denied Mr. Pilzer's averment, stating that it had increased only ...


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