Original jurisdiction in case of Frank C. Hilton v. State Employees' Retirement Board of the Commonwealth of Pennsylvania.
Harold Gondelman, with him Baskin, Boreman, Wilner, Sachs, Gondelman & Craig, for plaintiff.
J. Justin Blewitt, Jr., Deputy Attorney General, with him Lawrence Silver, Deputy Attorney General, and Robert P. Kane, Attorney General, for defendant.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer. President Judge Bowman dissents. Dissenting Opinion by Judge Wilkinson. Judge Blatt joins in this dissent.
[ 23 Pa. Commw. Page 641]
Frank C. Hilton (Hilton) was a cabinet-level officer of the Commonwealth of Pennsylvania from January 25, 1971 until September 13, 1974, occupying an office of high public trust as the Secretary of Property and Supplies. He was also, during this time, a member of the State Employees' Retirement System.
Following the termination of his employment with the Commonwealth, Hilton instituted an action in mandamus, or alternatively for specific performance, to compel the State Employees' Retirement Board (Board) to release funds allegedly due to him under the option which he selected for the payment of his retirement benefits.*fn1
An answer was filed to Hilton's complaint, and as new matter it was alleged that Hilton had been convicted in Federal courts on two separate counts of extortion from which convictions appeals are presently pending. It was alleged that these extortion convictions arose from two separate transactions in which Hilton was involved while performing his official duties as Secretary of Property and Supplies. It was further alleged that as a result of these extortions Hilton received in excess of $177,000, causing financial loss to the Commonwealth in the form of increased insurance costs and a loss of approximately $177,000 in actual revenues because of Hilton's failure to pay over this sum of money to the Pennsylvania Higher Education Assistance Agency.*fn2 Hilton filed a reply to the new matter in which he denied
[ 23 Pa. Commw. Page 642]
the Commonwealth's allegations and moved for summary judgment on the pleadings.
Hilton's claim is based on his assertion that he has complied with all requirements precedent to payment of benefits and has furnished to the Board all necessary forms and applications for selection of options and that the State Employees' Retirement Code (Retirement Code), 71 Pa. C.S. § 5953, exempts his retirement benefits from execution and other process.*fn3 The Commonwealth makes the retort that such a claim under the circumstances of this case represents the zenith of arrogance.
We view this case with an awareness that an action in mandamus is essentially equitable in nature, requiring the application of equitable considerations. It is reserved only for those situations where necessary to promote the ends of justice and where the prayer of the complainant appeals to the conscience of the court. Taggart v Board of Directors of Canon-McMillan Joint School System, 409 Pa. 33, 185 A.2d 332 (1962). Mandamus is an extraordinary writ which lies to compel the performance of a ministerial act or mandatory duty where there is a clear legal right in the plaintiff, a corresponding ...