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LOUIS PACKLER v. STATE EMPLOYES' RETIREMENT BOARD COMMONWEALTH PENNSYLVANIA (01/28/77)

decided: January 28, 1977.

LOUIS PACKLER, ON BEHALF OF HIMSELF AND ALL OTHER RETIRED PERSONS SUBJECT TO THE STATE EMPLOYES' RETIREMENT CODE OF 1959 AS SUBSEQUENTLY AMENDED, WHO WERE MEMBERS OF THE PENNSYLVANIA NATIONAL GUARD PRIOR TO SEPTEMBER 17, 1940, APPELLANT,
v.
STATE EMPLOYES' RETIREMENT BOARD OF THE COMMONWEALTH OF PENNSYLVANIA



COUNSEL

Patrick H. Mahady, Mahady & Mahady, Greensburg, for appellant.

Raymond Kleiman, Deputy Atty. Gen., Harrisburg, for appellee.

Jones, C. J., and Eagen, O'Brien, Pomeroy and Manderino, JJ. Roberts and Nix, JJ., took no part in the consideration or decision of this case.

Author: Manderino

[ 470 Pa. Page 369]

OPINION OF THE COURT

Appellant, Louis Packler, was a member of the Pennsylvania State Police from 1936 until his retirement in 1973. Prior to 1936 he served four years with the Pennsylvania National Guard. Appellee, the State Employees' Retirement Board, in calculating appellant's years of service for retirement purposes, did not include

[ 470 Pa. Page 370]

    his four years of service with the Pennsylvania National Guard. Appellant filed a complaint in the Commonwealth Court seeking a writ of mandamus directing the Board to include these four years in computing his years of service. The Board filed preliminary objections to the complaint including a demurrer. The appellant then filed an answer to the preliminary objections. The Commonwealth Court sustained the Board's demurrer to the complaint, Packler v. State Emp. Retirement Bd., 15 Pa. Commw. 143, 325 A.2d 335 (1974). This appeal followed pursuant to the Appellate Court Jurisdiction Act of 1970, July 31, P.L. 673, No. 223, Art. II, § 203, 17 P.S. § 211.203 (supplement).

In sustaining the Board's demurrer to the complaint, the Commonwealth Court noted that the appellant's claim in this case is based on subsections (1) and (2) of Section 204 of State Employees Retirement Code of 1959 (Act of June 1, 1959, P.L. 392, as amended, 71 P.S. § 1725-204(1) and (2)) which provide:

"(1) In computing the length of service of a contributor for retirement purposes, a year of service shall mean a period of twelve (12) months during which a contributor is a State employe and for which he receives an annual salary or other compensation. . . .

(2) Any person who became a member of the Pennsylvania Motor Police subsequent to January 1, 1938, or a member of the Pennsylvania State Police subsequent to June 1, 1943, and who shall have been at any time theretofore in the employ of the Commonwealth shall receive credit for any such service prior to January 1, 1938, or prior to June 1, 1943, as the case may be, upon complying with the provisions of article III. section 302." (Emphasis added.)

The Court concluded that Subsection (2) of the Act, read in conjunction with the appellant's complaint discloses that this ...


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