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KANE v. ALLEGHENY COUNTY RETIREMENT BOARD. MINOGUE V. ALLEGHENY COUNTY RETIREMENT BOARD. MCELLIGOTT V. ALLEGHENY COUNTY RETIREMENT BOARD (01/29/73)

decided: January 29, 1973.

KANE
v.
ALLEGHENY COUNTY RETIREMENT BOARD. MINOGUE V. ALLEGHENY COUNTY RETIREMENT BOARD. MCELLIGOTT V. ALLEGHENY COUNTY RETIREMENT BOARD, ET AL.



Appeals from the Orders of the Court of Common Pleas of Allegheny County in cases of William Kane v. Retirement Board of Allegheny County, No. 3358, July Term, 1971; William F. Minogue v. Retirement Board of Allegheny County, No. 3359, July Term, 1971; and John J. McElligott v. Retirement Board of Allegheny County, and Thomas J. Foerster, Commissioner-President; Robert B. Friend, Secretary; Edward F. Cooke, Treasurer; Leonard C. Staisey and Dr. William R. Hunt, Commissioners, and Board Members: Francis A. Barry and William D. Maloney, Employee Representatives; Anthony J. Martin, Solicitor; Frank M. Leiterman, Executive Secretary, No. 2099, April Term, 1971.

COUNSEL

Anthony J. Martin, with him Martin, Finnegan & Rossetti, for appellants.

John A. Metz, Jr., with him Metz, Cook, Hanna & Kelly, for appellees, Kane and Minogue.

Helen M. Witt, with her Cleland, Hurtt and Witt, for appellee, McElligott.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Crumlish, Jr. Dissenting Opinion by Judge Mencer. Judges Wilkinson and Blatt join in this dissent.

Author: Crumlish

[ 7 Pa. Commw. Page 264]

The Court of Common Pleas of Allegheny County directed the Retirement Board of Allegheny County (Board) to pay appellees, upon termination of their employment with the County, retirement benefits based on appellees' entire period of service. The order is conditioned upon the payment by appellees of all the contributions they would have made had the Retirement Board not terminated their membership in the retirement system. The Board appeals.

Prior to their employment in the Judicial and Administrative system of Allegheny County, all three appellees had been employed by the City of Pittsburgh and were receiving pension benefits from the City. The appellees were in the employ of Allegheny County during a period prior to August 1, 1953, but subsequent to March 31, 1937.

[ 7 Pa. Commw. Page 265]

During their first pay period, the County enrolled appellees as members of the County retirement system. On December 31, 1953, the County removed appellees from membership and refunded their prior contributions.

Appellant cancelled the appellees' membership in reliance on the Act of March 31, 1937, P.L. 191, § 12, 16 P.S. 326 on the ground that the provisions of the Act prohibited their initial admission. The Act 332 of December 13, 1967, P.L. 722, § 1, 16 P.S. § 4716 repealed the Act of 1937. Thereafter, appellees were enrolled as members in the retirement system and their contributions were deducted from their pay.

It is the contention of appellant that the Act of March 31, 1937, P.L. 191, § 12, 16 P.S. 326 barred the appellees from membership in the retirement fund, and therefore the Retirement Board acted properly in (1) expelling the appellees from the retirement after they were mistakenly admitted; (2) in returning the paid contributions, and (3) in allowing ...


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