Orlosky v. City of Reading

17 Pa. D. & C.5th 460
CourtPennsylvania Court of Common Pleas, Berks County
DecidedOctober 20, 2010
Docketno. 09-11285
StatusPublished

This text of 17 Pa. D. & C.5th 460 (Orlosky v. City of Reading) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Berks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Orlosky v. City of Reading, 17 Pa. D. & C.5th 460 (Pa. Super. Ct. 2010).

Opinion

SPRECHER, J.,

— Defendants appeal the order dated July 28, 2010, which granted summary judgment in favor of plaintiff and against all defendants. Defendants were ordered to include plaintiff’s compensatory time payments in the calculation of plaintiff’s pension benefits after the appropriate [462]*462deductions were taken.

FACTS

No trial was held in this matter. The parties filed a Joint Stipulation of Facts. The pertinent facts are as follows.

Defendant, Thomas McMahon, is the mayor of the defendant, City of Reading (Reading), and á member of defendant, City of Reading Fire Pension Board (Fire Pension Board). Defendant, Shelly Fizz, is the pension administrator for Reading. Defendant, Ryan Hottenstein, is currently the managing director for Reading, formerly acting managing director, and formerly finance director. Reading maintains and administers a pension plan for its firemen and related personnel. Plaintiff, Steven Orlosky, was a Reading fireman until his retirement.

On January 9, 2006, and effective January 1, 2006, Reading adopted bill no. 91-2005, the Deferred Retirement Option Program (D.R.O.P.). On January 9, 2006, plaintiff executed the D.R.O.P. Election Program Application, City of Reading Firemen’s Pension Plan, and the Reading Firemen’s Pension Application for Pension Benefits. On January 20, 2006, Reading advised plaintiff that he had been accepted into the D.R.O.P. effective January 1,2006, with amonthly pension of $3,139.49 and an annual pension of $37,563.88. On January 1, 2006, the Reading Pension B oard Administrator prepared a document entitled Fire Estimated Pension Calculations wherein it provided that plaintiff would receive the aforementioned pension. This document did not contain the inclusion of the value of any compensatory time for time worked by [463]*463plaintiff prior to January 1, 2006, for which he had not been compensated as of that date.

Prior to entering the D.R.O.P., plaintiff had accrued 384.75 of compensatory time. Payment for these hours was at the rate of $30.32 per hour for a total of $11,665.62. This money was paid to plaintiff at the time of his retirement on June 30, 2008. No pension contribution deduction was made from this payment.

In 2007 plaintiff requested payment of his compensatory earnings and was advised by a former Managing Director that according to policy, plaintiff would not be entitled to receive his compensatory funds until he actually retired.

Another fireman, Deputy Chief Jeffrey Squibb, was paid for substantially all of his compensatory time without requiring that he wait until his retirement. Deputy Chief Squibb elected to participate in the D.R.O.P. approximately on June 1, 2007, after receiving payment of his compensatory time of $8,409.00, representing 300 hours of compensatory time. All the usual payroll deductions, including pension deductions, were taken out of his earnings.

At a meeting with the mayor, the city solicitor, plaintiff’s counsel, and Mr. Hottenstein, it was again reiterated that it was Reading’s policy not to pay compensatory time earned until the actual retirement of the employee. On September 21, 2007, plaintiff’s counsel wrote a letter to the Human Resources Coordinator/ Pension, requesting that plaintiff’s compensatory time be utilized in computing his retirement benefits.

[464]*464On April 30, 2008, plaintiff advised Reading that he would be retiring on June 20, 2008. On September 4, 2008, Reading advised plaintiff that it was unable to support his request to include the compensatory hours as part of plaintiff’s pension. The mayor reiterated this position by letter dated June 25, 2009. On June 17, 2009, the Firemen’s Pension Board accepted and agreed to the mayor’s response.

The pertinent provision in the City of Reading Codified Ordinances regarding D.R.O.P. reads as follows:

4. Benefit Calculation. For all Retirement Fund purposes, continuous service of a member participating in the D.R.O.P. shall remain as it existed on the effective date of commencement of participation in the D.R.O.P. Service thereafter shall not be recognized or used for the calculation or determination of any benefits payable by the Reading Firemen’s Pension Fund. The average monthly pay of the member for pension calculation purposes shall remain as it existed on the effective date of commencement of participating in the D.R.O.P. Earnings or increases in earnings thereafter shall not be recognized or used for the calculation or determination of any benefits payable by the Pension Fund. The pension benefit payable to the members shall increase only as a result of Cost of Living Adjustments in effect on the effective date of the member’s participation in the D.R.O.P., or by applicable cost of living adjustments granted thereafter.

Paragraph 2 of the Election Program Application [465]*465states:

(2) As of my DROP date, the calculation of my pension benefit shall freeze and no service rendered or compensation received after my DROP date, unless paid on a retroactive basis, shall be considered for pension and calculation purposes.

Based on these uncontroverted facts, this court entered the aforesaid order. All defendants filed timely appeals.

ISSUES

Defendants, Shelly Fizz and City of Reading Firemen’s Pension Fund, raise the following issues in their concise statement of errors complained of on appeal:

1. This court erred by failing to find that the City of Reading Firemen’s Pension Fund properly calculated plaintiff’s pension benefit.

2. This court erred by failing to find that the plain meaning of the D.R.O.P. Ordinance, § 1-644(4) expressly excludes any service credit and/or compensation received after a member’s entry into the D.R.O.P. from the calculation of that member’s pension benefit.

3. This court erred by failing to find that plaintiff indisputably entered into the D.R.O.P. on January 1, 2006, and the fund properly relied on this critical date in calculating plaintiff’s benefit, based on his compensation during the twelve months preceding that retirement date regardless of any claim subsequently made for compensatory time.

[466]*4664. This court erred by failing to find that the D.R.O.P. ordinance specifically provides that “Earnings or increases in earnings thereafter shall not be recognized or used for the calculation or determination of any benefits payable by the pension fund.

5. This court erred by failing to find that plaintiff did not receive any monies related to his compensatory time until more than two years after his retirement, i.e., June 30, 2008, and that said payment was rendered outside the relevant time period for calculating plaintiff’s pension benefit.

6. This court erred by failing to consider and apply to this case the legal principle of a “critical moment in time” for purposes of calculating plaintiff’s pension benefit.

7. This court erred by failing to consider the Third Class City Code, as it relates to the calculation of pension benefits, to wit: “The basis of the pension of a member shall be determined by the monthly salary of the member at the date of vesting under section 4320.1 or retirement,” (53 P.S. § 39322(a)), which under the D.R.O.P. is the date upon which a participant enters the program.

8.

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Bluebook (online)
17 Pa. D. & C.5th 460, Counsel Stack Legal Research, https://law.counselstack.com/opinion/orlosky-v-city-of-reading-pactcomplberks-2010.