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PHILIP GOLD v. DEPARTMENT PUBLIC INSTRUCTION (11/20/74)

decided: November 20, 1974.

PHILIP GOLD, PLAINTIFF,
v.
DEPARTMENT OF PUBLIC INSTRUCTION, COMMONWEALTH OF PENNSYLVANIA, PUBLIC SCHOOL EMPLOYES' RETIREMENT BOARD, DEFENDANT



Original jurisdiction in case of Philip Gold v. Department of Public Instruction, Commonwealth of Pennsylvania Public School Employes' Retirement Board.

COUNSEL

Saul Doner, with him LaCheen, Doner, Lacheen & Gross, for plaintiff.

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

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

Author: Kramer

[ 16 Pa. Commw. Page 248]

This matter was filed within the original jurisdiction of this Court. It was commenced on January 7, 1974 with the filing of a petition for a declaratory judgment by Philip Gold (Gold) as the sole beneficiary of the estate of his deceased wife, Bertha Gold, seeking certain benefits under the Public School Employes' Retirement Code of 1959, Act of June 1, 1959, P.L. 350, as amended, 24 P.S. § 3101 et seq. The suit was filed against the Department of Public Instruction, Commonwealth

[ 16 Pa. Commw. Page 249]

    of Pennsylvania Public School Employes' Retirement Board (Board), which, by letter, had apparently resolved not to grant certain benefits requested by Gold.

Bertha Gold was a contributor and member of the Public School Employes' Retirement system by virtue of her employment as a school teacher in the Philadelphia school system, during which she had accumulated 36.7 years of accredited service. In anticipation of her retirement on May 15, 1970, Bertha Gold made application on May 7, 1970, for retirement benefits. In her application she elected the maximum annuity, which entitled her, during her lifetime, to the highest monthly annuity available. In the event of her death prior to receiving, in monthly allowances, the total amount of her accumulated deductions (contributions plus interest), any balance remaining would be payable to her beneficiary, Gold. Bertha Gold died on July 9, 1970.

Based upon the facts that Bertha Gold had not received any indication of an acceptance of her application for retirement by the Board, and her untimely death within 90 days of the date of her application, Gold made a claim for retirement benefits under a different option, alleging that his deceased wife's application had become a nullity. If Gold is entitled to the benefits under the application which his wife filed, he would be entitled to $14,170.78. If he is entitled to benefits under the option he desired, assuming as he alleges that his wife's application became a nullity, then he claims he is entitled to $82,500.00, with interest from July 9, 1970.

After the filing of the petition for declaratory judgment, the Board filed timely preliminary objections in which it asserts that Gold did not avail himself of the exclusive statutory remedy provided and, therefore, this Court is without jurisdiction to entertain this lawsuit seeking a declaratory judgment. Because the facts of the case are not in dispute and the matter for determination

[ 16 Pa. Commw. Page 250]

    is the preliminary objections, we need not pass on the merits of the case. The issue before is whether, after accepting all of the alleged facts properly pleaded, this Court has ...


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