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ROBERT E. O'BRIEN v. COMMONWEALTH PENNSYLVANIA (03/05/74)

decided: March 5, 1974.

ROBERT E. O'BRIEN, APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, STATE EMPLOYES' RETIREMENT BOARD, APPELLEE



Appeal from the Order of the State Employes' Retirement Board in case of In the Matter of Robert E. O'Brien, applicant, Order of January 30, 1973.

COUNSEL

Thomas E. Sterling, for appellant.

Raymond Kleiman, Deputy Attorney General, with him Israel Packel, Attorney General, for appellee.

Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. President Judge Bowman did not participate. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 12 Pa. Commw. Page 50]

This is an appeal from a determination of the State Employes' Retirement Board (Board) which denied Robert E. O'Brien's request to appear before the Board.

O'Brien (Appellant) was employed by the Commonwealth of Pennsylvania from December 30, 1933, until March 6, 1941, and was a member of the State Employes' Retirement Association. On February 17, 1941, Appellant was called into active military service by Executive Order of the President of the United States. He served under the Mandatory Executive Order until his eligibility for release in February 1946, when he chose to apply for continuation of his active service. On October 18, 1947, he applied for and received refund of his contributions to the State Retirement Fund.

The Appellant continued in active military service during the Korean Conflict by extending his category commitment in 1951 and again in 1954. On June 11, 1957, the Appellant resigned from State Employment. The appellant retired from military service effective November 1, 1960, and on May 9, 1961, and then became employed by the Pennsylvania State University as an Associate Professor. From May 9, 1961 until his retirement on July 1, 1967, Appellant was a member of the State Retirement Plan.

Subsequently, Appellant requested the Board for military service credit toward retirement for the period February 17, 1941 to September 30, 1957. The Board denied this request, determining that Appellant was entitled to a military service credit for a period from February 14, 1941, to February 1946, which was

[ 12 Pa. Commw. Page 51]

    the period of Appellant's compulsory military service. The Board determined that Section 207 of the State Employes' Retirement Code of 1959, Act of June 1, 1959, P.L. 392, as amended, 71 P.S. 1725-207 precluded Appellant from receiving credit for the balance of his military service which he voluntarily extended.

This Commonwealth Court in State Employes' Retirement Board v. O'Brien, 93 Dauph. 101 (1970), agreed with the Board's interpretation and dismissed the appeal. On December 4, 1970, the Pennsylvania Supreme Court denied Appellant's "Petition for Leave to File for Allowance of Appeal."

Appellant again requested permission to appear before the Board to discuss the amount and manner of payment of salary deductions for his retirement benefits. At that meeting, the Board concluded that he should not make another repetitive personal appearance. Appellant was advised on June 24, 1971 that it had been determined that he owed $418.95 if he wanted to receive ...


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