OPINION BY RENO, J., January 20, 1953:
Appellant sued the members of The Officers and Employees Retirement Board of the City of Washington, a city of the third class, in assumpsit to recover $209.12 on account of retirement pay under an ordinance providing for such compensation after 20 years of service. The City filed preliminary objections in the nature of a demurrer; the facts were stipulated; and the court below sustained the demurrer and entered judgment for defendant.
The Ordinance was adopted on February 1, 1950, and was based upon the Act of May 23, 1945, P.L. 903, 53 P.S. § 12198-4371, et seq., the pertinent section of
Appellant was an employe in the office of the city treasurer from March 21, 1928 to May 15, 1951, when he voluntarily retired, having previously paid several contributions required by the ordinance. He was then more than 55 years of age and less than 60. From 1928 until the first Monday of January, 1944
The date upon which the legal relations between the employes of the treasurer and the City were changed is left in some doubt. At one point in the opinion of the court below there is the statement: "This situation [referring to the relationship described above] continued up until the first Monday of January, 1944, at which time the City Treasurer was placed on a straight salary basis, and he and his clerks and deputies were thereafter paid out of City funds as other City employees were paid." At another place the learned judge, referring to an ordinance which provided salaries of $20 a month for the treasurer's deputy and clerk, stated: "There never was any Ordinance passed or in effect, authorizing the employment or payment of any clerks or deputies in the office of the City Treasurer, except the one herein referred to enacted on or about January 1, 1951." However, whether the correct date is 1944 or 1951 is not material to this decision, since in our view of the case, in either event
Clearly from 1928 to 1944, he was not an employe of the City. He was an employe of the treasurer, appointed by him, paid by him, controlled by him, and responsible solely to him. The City had not hired him and could not discharge him. During that period of his service the law regulating the affairs of cities of the third class provided: "Council shall have the power of appointment and dismissal of all employes and subordinate officers of the city . . .," and "shall prescribe, by ordinance, the number, duties, and compensation of the officers and employes of the city. No payment of such compensation shall be made from the city treasury, or be in any way authorized, to any person except an officer or employe elected or appointed in pursuance of law."
Appellant argues that, even if he was not technically an employe, he is entitled to recover under the broad sweep of the definition of an employe as "a person in the service of the city." The purpose of the
Appellant performed municipal functions; that is, he performed the duties which the law imposed upon the treasurer. His services were rendered to and commanded by the treasurer. He was "in the service of the" treasurer, not of the city. His position had not been created by an ordinance and he had not been appointed to it by the council. He came into "the service of the city" only after he was appointed to a position created by an ordinance which prescribed its duties and fixed its compensation.
When the nature and purposes of retirement legislation are examined, it becomes unequivocally clear that appellant does not come within its scope. In Busser v. Snyder, 282 Pa. 440, 454, 128 A. 80, the acts providing for retirement compensation were described: "[T]hey are founded on faithful, valuable services actually rendered to the Commonwealth over a long period of years, under a system of classification which the legislature has considered reasonable. These appropriations are for delayed compensation for these years of continued service actually given in the performance of public duties in their respective capacities, with the quality
The basic theory which supports retirement statutes is that retirement pay is adjusted or delayed compensation for service rendered in the past. Adjusted compensation presupposes that compensation was paid in the past; delayed compensation is one earned in the past but not then paid. Adjusted or delayed compensation necessarily refers to compensation which a municipality has paid to an employe in the past or which an employe has earned in addition to the compensation he received from the municipality in the past. No adjusted or delayed compensation payable as retirement pay is due to a person who has not received and was not entitled to receive compensation from a municipality which ordains a retirement plan. The indispensable prerequisite for eligibility to retirement compensation is valid attachment to the public pay roll for the qualifying period. That status having been established, and the required tenure and age attained, retirement pay is collectible although, as may sometimes
Kelly v. Loveland, 141 Pa.Super. 455, 15 A.2d 411, upon which appellant relies, involved the pension of a city treasurer, who of course was a person in the employ of the city. Part of his tenure was served as a clerk in the office of the city treasurer. Whether his salary as clerk was paid by the city or the treasurer does not clearly appear, although there are expressions in the opinion that seem to indicate that the city paid his salary. At all events, the question presented in this appeal was not there litigated, and the case throws no light upon this problem.
The court below properly entered judgment for defendants. This disposition of the appeal renders unnecessary discussion or decision of the question of the power of the City, by ordinance, to compel continued contributions to the fund until the employe becomes 60 years of age, contrary to the provision of the Act.
If any person shall have served twenty (20) years and voluntarily retires he shall, by continuing his contributions until the age of fifty-five (55), be entitled to the above compensation."
The provisions referred to in the text were repealed pro tanto by the Act of May 23, 1945, P.L. 859, § 1, which amended the Act of June 23, 1931, P.L. 932, by adding § 1402.1 to Art. XIV thereof, as follows: "The city treasurer shall appoint all the assistants and employes of his office, whose number and compensation shall be fixed by council, and who, in all other respects, shall be considered as employes of the city." The section was re-enacted without change by the Act of June 28, 1951, P.L. 662, § 1408, 53 P.S. § 12198-1408. See also the Act of May 17, 1949, P.L. 1400, § 1, 72 P.S. § 5511.33.