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LOUIS PACKLER v. COMMONWEALTH PENNSYLVANIA (02/02/78)

decided: February 2, 1978.

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, PLAINTIFF
v.
COMMONWEALTH OF PENNSYLVANIA, THE STATE EMPLOYES' RETIREMENT BOARD, DEFENDANT



Original jurisdiction in case of 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 v. Commonwealth of Pennsylvania, State Employes' Retirement Board.

COUNSEL

Patrick H. Mahady, with him Henry J. Mahady, Robert H. Slone, and Mahady & Mahady, for plaintiff.

Raymond Kleiman, Deputy Attorney General, with him Robert P. Kane, Attorney General, for defendant.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Rogers, Blatt and DiSalle. Opinion by Judge DiSalle.

Author: Disalle

[ 33 Pa. Commw. Page 453]

Louis Packler (Packler), was a member of the Pennsylvania State Police from 1936 until his retirement in 1973. Packler, prior to commencing his service with the State Police, served four years with the Pennsylvania National Guard. The State Employes' Retirement Board (Board) in calculating Packler's years of service for retirement annuity purposes, did not include his four years of service with the National Guard. Packler filed a complaint in this Court seeking a writ of mandamus to compel the Board to include these four years in its computation. The Board filed preliminary objections to the complaint, including a demurrer. Packler then filed an answer to the preliminary objections.

[ 33 Pa. Commw. Page 454]

This Court sustained the Board's demurrer to the complaint, Packler v. State Employes' Retirement Page 454} Board, 15 Pa. Commonwealth Ct. 143, 325 A.2d 335 (1974). In so doing, we ruled that the action for mandamus did not lie since Packler had no clear legal right to have his service with the National Guard included under subsections (1) and (2) of Section 204 of State Employes' Retirement Code of 1959 (Code), Act of June 1, 1959, P.L. 392, as amended, 71 P.S. § 1725-204 (1) and (2). Packler then appealed to the Pennsylvania Supreme Court.

The Supreme Court agreed with our ruling with respect to Section 204 (2) of the Code. However, it held that our dismissal of the complaint without consideration of Packler's rights under other Code provisions was improper and therefore remanded the proceedings. Packler v. State Employes' Retirement Board, 470 Pa. 368, 368 A.2d 673 (1977). The Supreme Court succinctly stated at page 371:

Although we agree, as does appellant, with the Commonwealth Court's conclusion that Subsection (2) would not entitle the appellant to the relief sought, we must vacate the Commonwealth Court's order and remand to that Court for a determination of the appellant's rights under Subsection (1) and the definition of 'State Employee' under 71 P.S. § 1725-102 (6), and other relevant Code provisions. Since a preliminary objection in the nature of a demurrer should not be granted if the allegations of the complaint state a cause of action under any theory of law, it was improper to sustain the demurrer in regard to Section 204 (2) without considering the appellant's rights under other Code provisions. See Lerman v. Rudolph, 413 Pa. 555, 198 A.2d 532 (1964).

Other issues are raised in this appeal including the impropriety of a class action, lack

[ 33 Pa. Commw. Page 455]

    of standing and failure to exhaust administrative remedies. Since these issues were not considered by the Commonwealth Court, we do ...


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