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FRED L. KELLAMS ET AL. v. PUBLIC SCHOOL EMPLOYES' RETIREMENT BOARD (07/16/79)

decided: July 16, 1979.

FRED L. KELLAMS ET AL., APPELLANTS,
v.
PUBLIC SCHOOL EMPLOYES' RETIREMENT BOARD



Nos. 53 and 54 May Term, 1978, Appeal from the Order entered by the Commonwealth Court Dated October 12, 1978, Indexed in the Commonwealth Court to No. 338 CD, 1976. Mr. Justice Roberts filed an Opinion in Support of Affirmance in which Mr. Justice Nix joins. Mr. Justice Manderino concurs in Affirmance. Mr. Justice Larsen filed an Opinion in Support of Reversal in which Mr. Chief Justice Eagen and Mr. Justice O'Brien join.

COUNSEL

Clarence C. Morrison, Harrisburg, for appellants.

Raymond Kleiman, Harrisburg, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Roberts, J., filed an Opinion in Support of Affirmance in which Nix, J., joins. Manderino, J., concurs in Affirmance. Larsen, J., filed an Opinion in Support of Reversal in which Eagen, C. J., and O'Brien, J., join.

Author: Per Curiam

[ 486 Pa. Page 96]

OPINION

The Court being equally divided, the order is affirmed.

[ 486 Pa. Page 97]

OPINION IN SUPPORT OF AFFIRMANCE

ROBERTS, Justice.

For the past several years the Commonwealth, as a result of its own error, has paid retired public school employees, annuitants of the Public School Employes' Retirement System, more retirement benefits than the Retirement Code of 1959 directs. Not a particle of evidence suggests the retirees improperly induced the overpayments. Indeed, the overpayments were made solely because the Commonwealth mistakenly interpreted the Code. And nothing would suggest the retirees sought to perpetuate the Commonwealth's error. To the contrary, it was the retirees who initiated proceedings for declaratory relief to clarify their own rights.

Despite the obvious, indeed, admitted unfairness of its declaration, the Opinion in Support of Reversal would sanction the Commonwealth's recovery of the past payments. Surely the retirees have not held these retirement payments on reserve. Indeed, the payments are expressly designed for current use. The Commonwealth Court, Wilkinson, Jr., J., fully explained:

"here the issue is not the correctness of the Commonwealth claim, it is whether it would be unconscionable to permit the Commonwealth to demand restitution in this unusual situation. Perhaps the things that make the plaintiffs' position so unique are that all the facts were well known to everyone, as far as the record shows the original incorrect ruling was made unilaterally by the Commonwealth after a request and full disclosure by the plaintiffs, and the Commonwealth persisted in ...


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