Township of Ross v. McDonald

Opinion by

Judge Craig,

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 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, biweekly, 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 officials ineligible, and added:

All elected officials of the township of Ross, and the township solicitor, shall be eligible to participate in the plan, as of January 1, 1961.

Additional terms of the amendment established the eligibility conditions and benefits for the elected officials and township solicitor. Those terms were further amended in 1962 and 1963.

An amendment of July 1, 1966 reiterated reference to the elected officials and the township solicitor, restating the phrase as “Elected Commissioners and appointed Solicitor. ’ ’ Another provision of that 1966 amendment, relating to mandatory retirement date, stated:

This provision shall not apply to elected Commissioners, Solicitor, Township Secretary and Manager, Building and Plumbing Inspectors.

The next amendment, June 6, 1967, also dealing with retirement date, made reference to

any full time employee, including elected Commissioners and appointed Solicitor, Township Secretary and Manager, Building and Plumbing Inspectors....

Additional amendments in 1967 and 1969 revised pension terms with respect to the elected officials and solicitor, but in respects not affecting the issues here. By amendment of February 22, 1971, the elected officials and the appointed solicitor were deleted from the plan, but without divesting any rights or benefits then accrued. Admitted averments of the pleadings confirm that the appellant solicitor had qualified for a pension before the deletion amendment, and, being retired, had received pension payments until the township withheld them pending determination of legality.

The central issue in this particular case is whether the township commissioners had the power to enact pension plan coverage for a township solicitor, a question which depends upon whether such an appointed official is to be considered one of the “employes” within the meaning of Section 1502, cl. XXIII, of The First Class Township Code (Code),¹ which authorizes such townships to provide “for the pensioning of . . . employes.” Also pertinent is Section 605 of the Code, granting power to provide annuities, in lieu of pension systems, for “employes.”

The common pleas court, in addition to holding that the township commissioners could not adopt a pension plan to cover themselves, held in a footnote, without citation of authority, that the solicitor is not an employee but is rather an independent contractor and is also an ‘ ‘ official. ’ ’

Although we held in the companion case that pension coverage for the elected commissioners was invalid, it is clear that their legal disability to enact pension coverage for “any elected officer” does not invalidate pension coverage adopted for appointees.² Thus, a pension can be provided for a solicitor, if a solicitor can be validly treated as an “employe.”

The common pleas court proceeded upon the implicit premise that the solicitor had been an independent contractor, but the record nowhere discloses that the relationship was or remained in independent contractor form. At argument, counsel advised that the solicitor was on the payroll for the purpose of social security tax withholding.

Regardless of the form of the relationship, there is no doubt that the solicitor is an officer of the township. Snyderwine v. Craley, 434 Pa. 349, 254 A.2d 16 (1969). The common pleas court appeared to believe that the status of officer and the status of employee for pension plan purposes are mutually exclusive. Clearly, such is not the case. Many governmental officials, who clearly have officer status — such as mayors or state cabinet members or judges — also have the status of employee with respect to compensation.

The position of township secretary, which Snyder-wine likewise mentioned as one conferring officer status, has been classed as an employee position for pension purposes in Francis v. Neville Township, 372 Pa. 77, 92 A.2d 892 (1952), where the Supreme Court treated the township secretary as falling within the language of Section 605 of the Code. Similarly, the Superior Court, in Kelly v. Loveland, 141 Pa. Superior Ct. 455, 15 A.2d 411 (1940) held that a city treasurer, under a different municipal law, could be considered as an “employee” for city pension purposes.

Thus it appears that our courts have interpreted the word “employee” for pension coverage purposes in a broad sense embracing all persons, including public officers, who work for, and are compensated by, municipal government.

The only question remaining is the further one suggested by the holding in Francis v. Neville Township, in which the decision struck down the coverage solely because the township secretary had been singled out for that purpose, there being no pension plan covering employees as a class. In view of the non-adversarial atmosphere of this proceeding, we cannot consider Francis v. Neville Township to be determinative unless all of the criteria established by that case are met.

However, our scrutiny of the amendments of the pension plan of Eoss Township indicates clearly that the other officers of the township, the secretary and manager, were covered from the outset in 1957. That conclusion is supported by the reference to coverage of them in the 1966 and 1967 amendments, coupled with the fact that no earlier amendment added them, thus evidencing that they were within the group originally covered as full time employees of the township, receiving compensation on the basis of regular pay periods.

Therefore, the record demonstrates that the solicitor was not singled out as the only appointed officer to be covered, in that, when Ms position was given pension coverage in 1961, tbe effect was to add tbe solicitor to the class of township officer positions, consisting of the secretary and manager at least, already covered.

We hence decide that the common pleas court should have declared pension coverage valid with respect to the solicitor.

Order

Now, July 1, 1981, the June 6, 1979 order of the Court of Common Pleas of Allegheny County at No. Gr.D. 78-17022, and the November 21, 1979 order dismissing exceptions filed thereto, are reversed insofar as those orders would negate the legality of the Township of Boss making payments to Paul W. Brandt, Esquire under the terms of its pension agreement and resolutions.

1 Act of June 24, 1931, P.L. 1206, as amended, 53 P.S. §56523.

2 Our decision in the companion ease, Township of Ross v. McDonald, 60 Pa. Commonwealth Ct. 306, A.2d (No. 2577 C.D. 1979, filed July 1, 1981) turns upon Section 603 of the First Class Township Code, Act of June 24, 1931, P.L. 1206, as amended, 53 P.S. §55603, restricting compensation increases of elected officers, but allowing “[appointed officers and employes of the township” to “receive such compensation ... as the township commissioners shall prescribe.”