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SCOTT v. ALLEGHENY COUNTY RETIREMENT BOARD (07/02/70)

decided: July 2, 1970.

SCOTT
v.
ALLEGHENY COUNTY RETIREMENT BOARD, APPELLANT



Appeals from orders of Court of Common Pleas, Civil Division, of Allegheny County, July T., 1969, Nos. 1363, 1364 and 1365, in case of Harvey J. Scott v. Retirement Board of Allegheny County; William F. Minogue v. Same; and George E. Jenkins v. Same.

COUNSEL

Anthony J. Martin, with him Martin, Finnegan and Rossetti, for appellant.

Walter A. Koegler, for appellees.

Leo Kostman, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Cohen.

Author: Cohen

[ 439 Pa. Page 251]

The Retirement Board of Allegheny County is appealing from three orders in actions of mandamus of the Court of Common Pleas of Allegheny County. The first order stated that Harvey Scott was eligible to become a member of the Retirement System of Allegheny County from the date of his employment, April 21, 1954, and should make such contributions as would have been required without interest. The second order stated that William Minogue should be reinstated to membership in the Retirement System of Allegheny County from the date of his employment, September 1, 1948, and that he make such contributions as would have been required without interest. The third order stated tht George Jenkins was eligible to receive retirement benefits and that appellant was directed to pay such benefits in accordance with his application commencing October 1, 1967.

All three actions arise out of the Act of July 28, 1953, P.L. 723, art. XVII, § 1716(c), as amended by the Act of May 31, 1955, P.L. 111, § 1, 16 P.S. § 4716, whose purpose "was to give effect to the public policy against governmental employes receiving more than one retirement allowance from governmental retirement systems." Schmidt v. Allegheny County Retirement Board, 394 Pa. 105, 108, 145 A.2d 692 (1958). In relevant part that statute stated: "(c) . . . nor any person who is employed . . . as a county employe subsequent to (March 31, 1937), who is receiving prior or subsequent thereto, or is eligible to receive prior or subsequent thereto, a pension annuity or retirement allowance from the Commonwealth of Pennsylvania, its departments, boards, commissions and agencies and of the

[ 439 Pa. Page 252]

    political subdivisions thereof shall be eligible to receive a retirement allowance from the county employes' retirement system. . . ." That prohibition was contained in the Second Class County Code,*fn1 and in Rockwell v. York County Retirement Board, 405 Pa. 406, 416, 175 A.2d 831 (1961), we stated: "While it seems unfair that the legislature, in the case of second-class counties, has established one standard and, in the case of all other political subdivisions, by legislative inaction, established another standard, such fact does not justify this Court in finding payment of dual benefits invalid. Such is clearly a matter for the legislature, not this Court." In 1967 the legislature did see fit to act, and by the Act of December 13, 1967, P.L. 722, § 1, 16 P.S. § 4716 (Supp. 1970), it repealed subsections (b) and (c) of section 1716 and provided that the repealing act should take effect immediately. We are now called upon to determine the implications of that repeal.

I.

Harvey Scott had been an employee of the City of Pittsburgh and prior to April 21, 1954 became eligible for a pension from the city as a result of that employment and actually was receiving that pension. On April 21, 1954 Scott was employed by Allegheny County in the Bureau of Elections. As a result of subsection (c) of the aforementioned act (actually the language quoted above is that of the 1955 amendment but the wording of the original 1953 statute similarly barred Scott), he was ineligible to become a member of the County Retirement System. On December 30, 1967 he ...


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