Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Charles J. Leslie v. The Retirement Board of Allegheny County, No. GD 79-8518, Issue No. 110741.
Melinda E. Martin, with her Joseph W. Conway, Conway, Meyer & Cambest, for appellant.
Anthony J. Martin, Martin and Martin, P.C., for appellee.
Judges Blatt, Craig and Doyle, sitting as a panel of three. Opinion by Judge Doyle.
[ 77 Pa. Commw. Page 232]
Charles J. Leslie appeals an order of the Court of Common Pleas of Allegheny County which dismissed exceptions to a non-jury verdict entered in his action in mandamus to compel the Retirement Board of Allegheny County to pay him retirement benefits allegedly due from January 1, 1962 through May 14, 1970 and to refund voluntary monthly contributions he paid during the same period.
Leslie was employed by Allegheny County from April 1, 1936 to February 28, 1943 as a laborer at North Park. From July 2, 1945 to June 30, 1951 he was employed by the Allegheny County Department of Public Works. From July 25, 1951 through December 31, 1961 he was employed as an assessor with the Allegheny Board of Property Assessments, Appeals and Review. The record indicates that Leslie left his employment at this point after being elected to serve on the City Council of the City of Pittsburgh. At his separation from service, Leslie was fifty-one years old and had been employed by the County for at least 23 years.
During his employment, Leslie contributed a percentage of his salary to the Retirement Fund as mandated by the effective legislative enactments. Following his separation from service, during the time he was a Councilman he made monthly voluntary contributions of $25.00 to the Fund, continuing to do so until he reached the age of sixty on May 14, 1970.
The termination of service form completed by the Chairman of the Board of Property Assessments, Appeal and Review, John Smith, indicated that Leslie had resigned his position effective December 31, 1961.
[ 77 Pa. Commw. Page 233]
On the same day the termination form was signed, Leslie submitted an application for continued membership in the pension program, as permitted under Section 1710(d) of the Second Class County Code (County Code), Act of July 28, 1953, P.L. 723, as amended, 16 P.S. § 4710(d).
Leslie argues that at the time of his resignation he also had the option to apply for a retirement allowance under Section 1710(b) of the County Code, 16 P.S. § 4710(b), which provides that when a county employee, with 20 or more years of service and over 50 years of age, and separated from employment through no cause of his own, applies to the Board, entitlement to retirement benefits accrues. The record indicates that since the position as city councilman was not a full-time position, Leslie could have performed his assessor's duties as well as those of councilman. It appears also that there was no legal disability which would have prevented simultaneous performance of both jobs. Leslie urges, however, that he did not continue in his employment as an assessor because he had been informed that it would conflict with his office as councilman. For this reason, he contends, his separation from service was "by reason of no cause or act of his own" and he was therefore eligible to receive a retirement allowance under Section 1710(b).
In support of his contention, Leslie relies on retirement records of one Samuel Strauss, and Leslie's own testimony regarding conversations he had with John Smith, now deceased, discussing his employment status at his termination of service. Objections were raised before the court of common pleas to the relevancy of the Strauss records ...