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MRS. SUSAN GROTTENTHALER v. COMMONWEALTH PENNSYLVANIA (01/26/79)

decided: January 26, 1979.

MRS. SUSAN GROTTENTHALER, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA STATE POLICE, RESPONDENT



Original jurisdiction in case of Mrs. Susan Grottenthaler v. Commonwealth of Pennsylvania, Pennsylvania State Police.

COUNSEL

Gary M. Lightman, with him Mancke & Lightman, for petitioner.

David H. Allshouse, Deputy Attorney General, with him Norman J. Watkins, Deputy Attorney General, Chief, Civil Litigation, and Gerald Gornish, Acting Attorney General, for respondent.

President Judge Bowman and Judges Crumlish, Jr., Mencer, Rogers, Blatt, DiSalle and Craig. Judges Wilkinson, Jr. and MacPhail, did not participate. Opinion by President Judge Bowman. Dissenting Opinion by Judge Craig. Judge Crumlish, Jr. joins in this dissent.

Author: Bowman

[ 40 Pa. Commw. Page 166]

Petitioner has filed a petition for review invoking the original jurisdiction of this Court pursuant to Section 401 of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, now Section 761 of the Judicial Code, 42 Pa. C.S. § 761, and seeking relief in the nature of a writ of mandamus against the respondent, Pennsylvania State Police. She seeks to compel the expenditure of funds directed by the "Gershenfeld" arbitration award of December 27, 1973. Respondent through a preliminary objection alleges that the provisions of the State Employees' Retirement Code (Code), 71 Pa. C.S. § 5101 et seq., render the award a nullity and bar the relief sought. The issue is, thus, the effect of the Code on the collective bargaining rights created by the Act of June 24, 1968, P.L. 237, 43 P.S. § 217.1 et seq. (hereinafter referred to as Act 111).

Petitioner is the widow of Pennsylvania State Police Trooper David Lee Grottenthaler. Trooper Grottenthaler was stricken with leukemia in March, 1976 and died September 22, 1976. Petitioner seeks the non-service-connected disability benefits and death benefits conferred by collective bargaining agreements entered into by the Fraternal Order of Police (F.O.P.), the designated collective bargaining agent of the State Police, and the Commonwealth.

The benefits in issue were first created by an arbitration award, the Gershenfeld Award, dated December

[ 40 Pa. Commw. Page 16727]

, 1973. The award was the product of binding arbitration conducted pursuant to Act 111. The provisions relevant to this case are:

14. Non-service-connected Disability Benefits

The Board of Arbitration awards a disability benefit of 70% of final average salary (as presently calculated for disability purposes) to officers who are totally and permanently disabled as the result of a non-service-connected disability. The disability must be one which disqualifies the officer from the performance of any gainful employment. Pension benefits for such officers shall be provided on the same basis as those granted officers in connection with total and permanent service-connected ...


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