Attorney: Dunmore Can’t Collect More Than $230K Paid To Retired Firefighter

March 7, 2019 GMT

SCRANTON — Dunmore cannot collect more than $230,000 it contends was improperly paid to retired firefighter Joseph A. Riccardo because it waited too long to take action against him, Riccardo’s attorney argued in court Thursday.

Attorney Geff Blake contends the borough and pension board’s nearly 17-year delay in filing a lawsuit unfairly hampers Riccardo’s ability to defend himself. Even if Riccardo is found liable, the statute of limitations bars the borough from collecting more than four years worth of payments, Blake said at a hearing before Senior Lackawanna County Judge Robert Mazzoni.

Mazzoni heard arguments on objections Blake filed to the lawsuit, which alleges Riccardo improperly accepted a monthly payment of $1,152.27 for 16½ years.

The money, which is in addition to his $1,622.27 monthly pension, compensated him for $55,477.35 of unused sick, vacation and holiday pay and other benefits he was owed when he retired on a disability pension in 1996. The payment was supposed to stop on June 12, 2001. An apparent oversight, the borough continued to pay it until January 2018, when the error was discovered.

The borough and pension board also filed suit against retired firefighter John Sardo, alleging he was overpaid $64,156 under a similar deal approved in 2015. Sardo has not yet responded to the suit. The hearing before Mazzoni was only on Riccardo’s case.

The lawsuit seeks to recoup damages for breach of contract and unjust enrichment. At Thursday’s hearing, Larry Durkin, attorney for the borough, argued the evidence clearly shows Riccardo was not entitled to the excess compensation.

“If you get an improper payment, you can’t keep it,” Durkin said. “If you do keep it, you’re going to be liable for it.”

Durkin acknowledged there is a four-year statute of limitations to recover damages, but argued Mazzoni does not have authority to rule on that issue at this stage of the litigation. That matter will be resolved later, once Blake files an answer to the lawsuit.

Blake asked Mazzoni to dismiss the entire lawsuit, arguing the borough is subject to a legal principle known as “laches,” which bars recovery of damages if a complaining party failed to act with due diligence.

He acknowledged Riccardo did not alert the borough to the issue, but said that does not mean he did anything wrong. He contends Riccardo should not be held responsible for actions of “incompetent people.”

“They’re acting like he did this diabolical thing by not contacting the borough to say, ‘I’m still getting a check,’” Blake said. “Isn’t it reasonable for him to assume Dunmore officials knew what they were doing?”

Durkin agreed the borough erred, but said that does not preclude it from seeking to recoup the money. He cited prior appellate court rulings that say a municipality is not bound to abide by a decision an employee was not authorized to make. In this case, no one was authorized to extend the payments and, in fact, no one did.

“It was a mistake,” Durkin said.

Durkin also asked Mazzoni to rule on a dispute over issues relating to Riccardo naming his adult daughter as the beneficiary of his pension once he dies. State pension law and the borough’s pension ordinance only allow the firefighter’s spouse or child under age 18 to be named as a beneficiary.

There is also an issue of timing because Riccardo did not sign the form designating his daughter as beneficiary until 2014 — 18 years after he retired. Durkin said Riccardo had to make that designation when he retired, which would have resulted in a reduced pension because part would be deferred for the survivor’s benefit. Riccardo has received his full pension since he retired.

In a related mater, Riccardo also advised officials he believes he can name his granddaughter as beneficiary, but there is no paperwork to show he ever did that, Durkin said.

Blake again questioned why the borough did not challenge that issue until now. News articles published in The Times-Tribune in 1997 and 2009, quote borough officials questioning if the granddaughter could be named. Officials also had the chance to challenge his daughter’s designation in 2014, when Riccardo sent in the paperwork, but never did, he said.

“Now, in 2019, they are raising it as some crisis,” he said.

Mazzoni took each of the issues under advisement and will issue a ruling at a later date.

Contact the writer: tbesecker@timesshamrock.com; 570-348-9137; @tmbeseckerTT on Twitter