MICHIGAN MUTUAL LIABILITY COMPANY vs. PETRANGELO CONSTRUCTION CO., INC.

LEO J. SANTUCCI vs. BOARD OF SELECTMEN OF PALMER.

4 Mass. App. Ct. 785

February 26, 1976

By this petition for declaratory relief the plaintiff seeks to establish that he is entitled, under the provisions of G. L. c. 32, Section 58 (as amended through St. 1973, c. 207, Section 3), to be retired from the position of superintendent of schools of Palmer with an annual retirement allowance equal to seventy-two percent of the total compensation ($25,630) he received under his contract with the school committee for the calendar year 1973, which represents both his final year of service and his highest annual rate of compensation in the position of superintendent. The defendant, appealing from a judgment so declaring, does not now contest that the plaintiff is a veteran within the meaning of Section 58, that he has been in the service of the Commonwealth or a subdivision thereof for a total period of thirty years in the aggregate, or that he was in active service at the time of his retirement. Weiner v. Boston, 342 Mass. 67 , 71 (1961). Bianchi v. Retirement Bd. of Somerville, 359 Mass. 642 , 646 (1971). Rather, their sole legal argument is based upon G. L. c. 32, Section 60 (as amended through St. 1973, c. 207, Section 7), which, in material part, states, "No veteran whose employment first begins after . . . [June 30, 1939], shall be subject to the provisions of . . . [section 58]." The employment prior to that date which is relied upon by the plaintiff includes approximately 255 hours of service as a janitor, in the months of November and December, 1938, and January, 1939, at Massachusetts State College (now the University of Massachusetts) in Amherst, where he was a student. The defendant's contention that such "casual" service is not "employment" within the meaning of Section 60 is not tenable. See the Bianchi case, supra, at 648-649; Rep. A. G., Pub. Doc. No. 12, at 68-69 (1957) (cited with approval in the Bianchi case, at 649). The

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defendant's suggestion that one eligible for benefits under the teachers' retirement system cannot choose alternatively the benefits under Section 58 is similarly laid to rest by the Bianchi case.

Judgment affirmed.