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COUNTY ALLEGHENY v. GLENN C. JONES (08/14/86)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 14, 1986.

THE COUNTY OF ALLEGHENY, THE ALLEGHENY COUNTY BOARD OF COMMISSIONERS, THE HONORABLE THOMAS J. FOERSTER, THE HONORABLE PETER F. FLAHERTY AND THE HONORABLE BARBARA H. HAFER, MEMBERS OF THE ALLEGHENY COUNTY BOARD OF COMMISSIONERS, APPELLANTS
v.
GLENN C. JONES, APPELLEE

Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Glenn C. Jones v. The County of Allegheny, The Allegheny County Board of Commissioners, The Honorable Thomas J. Foerster, Chairman, and The Honorable Peter F. Flaherty and The Honorable Barbara H. Hafer, Members of the Allegheny County Board of Commissioners, No. GD 85-11515.

COUNSEL

Robert L. McTiernan, Assistant County Solicitor, with him, James J. Dodaro, County Solicitor, for appellants.

S. Michael Streib, with him, Glenn Jones, for appellee.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 99 Pa. Commw. Page 648]

The Allegheny County Commissioners*fn1 appeal an Allegheny County Common Pleas Court order denying their motion for post-trial relief from a judgment in mandamus enjoining them from removing Glenn C. Jones as a member of the Allegheny County Board of Property Assessment, Appeals and Review (Board). We affirm.

The Commissioners appointed Jones to the Board for a six-year term commencing January 1, 1983. There are seven members of the Board serving staggered terms (terms expiring in separate years). The Commissioners adopted a policy requiring that "all County employees shall be required to retire at age seventy. . . ." (Emphasis added.) Jones was eighty-one years old when

[ 99 Pa. Commw. Page 649]

    this policy went into effect. The Commissioners notified him that, pursuant to this policy, he would have to vacate his membership on the Board. Jones responded by bringing an action in mandamus which resulted in the order from which the Commissioners now appeal.

Our scope of review of a common pleas court order in a mandamus action is limited to determining whether there was an error of law or an abuse of discretion. Trinisewski v. Hudock, 90 Pa. Commonwealth Ct., 159, 494 A.2d 504 (1985).

The Commissioners contend that Jones is removable at their will, relying upon Section 450 of the Second Class County Code,*fn2 which states that appointees to county office are removable at the appointing power's pleasure. We disagree.

Our Supreme Court in Watson v. Pennsylvania Turnpike Commission, 386 Pa. 117, 125 A.2d 354 (1956), held that where the legislature mandates the appointment of officials to staggered terms, the appointing power designated by the legislature (in that case the Governor) may not remove an official at its pleasure.*fn3 As in Watson, the legislature has decreed that Board members shall serve staggered terms. Section 2(c) of the Act of July 21, 1939 (Act).*fn4 The language of Section 450 of the Second Class County Code does not dictate a different result. In Watson a similarly worded constitutional

[ 99 Pa. Commw. Page 650]

    provision was determined to be inapplicable when appointment was to a staggered term.*fn5

The Commissioners alternatively contend that the mandatory retirement policy applies to Jones as a condition of his office. We reject this contention.

The policy's language plainly reaches only County employees. Members of the Board, however, are County officials, as they are appointed to hold a quasi-judicial office. See Section 2(e) of the Act and Bily v. Board of Property Assessment, Appeals and Review of Allegheny County, 353 Pa. 49, 44 A.2d 250 (1945). The fact that Jones is paid out of County funds and is entitled to a County pension does not make him an employee. Elected row office officials, who are clearly not employees, are also paid their salaries from County funds and covered by the County retirement system.

We hold that Jones may not be removed from the Board at the Commissioners' will and is not subject to the County's mandatory retirement policy. Hence, we affirm the common pleas court's order.

Order

The Allegheny County Common Pleas Court order, No. 85-11515 dated August 28, 1985, is affirmed.

Disposition

Affirmed.


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