Harold Gondelman, Pittsburgh, for appellant.
J. Justin Blewitt, Jr., Deputy Atty. Gen., Harrisburg, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Nix, J., took no part in the consideration or decision of this case.
This appeal arises from the denial by the Commonwealth Court of a motion for summary judgment by appellant, Frank C. Hilton.*fn1
Appellant filed a complaint against appellee, State Employees Retirement Board of the Commonwealth of Pennsylvania (hereinafter "Retirement Board"), seeking specific performance, or in the alternative the issuance of a writ of mandamus concerning the payment of his pension under the State Employees Retirement Code,
March 1, 1974, P.L. 125, No. 31, § 1, 71 Pa.C.S.A. § 5101, et seq. Appellant argued that the Retirement Board had no discretion in whether or not to pay a former state employee benefits under the Retirement Code once that former employee fulfilled the eligibility requirements of the Retirement Code.
The Retirement Board in its answer and new matter denied its duty to pay appellant his pension and claimed a right of offset. This right of offset is based upon appellant's conviction in the United States District Court for extortion in connection with kickbacks received by appellant while he was Secretary of Property and Supplies of the Commonwealth.*fn2
Appellant filed a reply to the new matter denying the Retirement Board's right to offset the losses incurred by the Commonwealth because of the kickbacks in the letting of insurance contracts. Appellant then filed a motion for summary judgment alleging that the Retirement Board had no right, absent an assignment by him, to offset any losses incurred by the Commonwealth because of his improper conduct.
The Commonwealth Court denied appellant's motion for summary judgment. In doing so, the court declared that "equitable principles" apply in construing § 5953 of the Retirement Code and, therefore, the Commonwealth should have the opportunity to present evidence concerning the kickbacks received by appellant in the performance of his official duties.
Appellant argues that § 5953 of the Retirement Code provides the criteria for the offset by the Commonwealth of vested pension funds and absent compliance with the mandatory provisions of § 5953, no offset ...