Opinion
Argued June 12, 1986
August 14, 1986.
Mandamus — Scope of appellate review — Second Class County Code, Act of July 28, 1953, P.L. 723 — County officials — Mandatory retirement policy — Staggered terms.
1. The scope of review of the Commonwealth Court of Pennsylvania 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. [649]
2. Because members of the Allegheny County Board of Property Assessment, Appeals and Review are appointed to staggered terms, nothing in the Second Class County Code, Act of July 28, 1953, P.L. 723, authorizes their removal at the pleasure of the appointing power. [649]
3. A county's mandatory retirement policy for county employees does not apply to county officials. [649-50]
Argued June 12, 1986, before President Judge CRUMLISH, JR., Judge COLINS, and Senior Judge KALISH, sitting as a panel of three.
Appeal, No. 2476 C.D. 1985, 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.
Complaint in mandamus in the Court of Common Pleas of Allegheny County seeking injunctive relief against county commissioners. Judgment for complainant. NARICK, J. Commissioners appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Robert L. McTiernan, Assistant County Solicitor, with him, James J. Dodaro, County Solicitor, for appellants.
S. Michael Streib, with him, Glenn Jones, for appellee.
The Allegheny County Commissioners 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 Honorable Thomas J. Foerster, Chairman, and the Honorable Peter J. Flaherty and the Honorable Barbara H. Hafer.
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 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. Commw., 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, which states that appointees to county office are removable at the appointing power's pleasure. We disagree.
Act of July 28, 1953, P.L. 723, as amended, 16 P. S. § 3450.
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. 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). The language of Section 450 of the Second Class County Code does not dictate a different result. In Watson a similarly worded constitutional provision was determined to be inapplicable when appointment was to a staggered term.
This holding was based upon a provision of the Pennsylvania Constitution, then found at Article XII, Section 1, which states that "[a]ll officers whose selection is not provided for in this Constitution, shall be elected or appointed as may be directed by law. . . ." This provision now appears in Article VI, Section 1 of the amended Constitution.
P.L. 626, 72 P. S. § 5452.2(c).
At the time of the Watson decision, Article VI, Section 4 of the Pennsylvania Constitution provided that "[a]ppointed officers . . . may be removed at the pleasure of the power by which they shall have been appointed." A similar provision is now found in Article VI, Section 7 of the amended Constitution.
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.