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MATTER PETITION PHILIP GOLD v. PUBLIC SCHOOL EMPLOYEES' RETIREMENT BOARD (11/05/79)

decided: November 5, 1979.

IN THE MATTER OF THE PETITION OF PHILIP GOLD, AND BENEFICIARY OF BERTHA GOLD, DECEASED, PETITIONER
v.
PUBLIC SCHOOL EMPLOYEES' RETIREMENT BOARD, RESPONDENT



Appeal from the Order of the Public School Employees' Retirement Board in case of In the Matter of the Petition of Philip Gold, Petitioner and Beneficiary of Bertha Gold, Deceased, dated October 28, 1977.

COUNSEL

Saul Doner, with him LaCheen, Doner & LaCheen, for petitioner.

Raymond Kleiman, Deputy Attorney General, with him Edward G. Biester, Jr., Attorney General, for respondent.

Judges Crumlish, Jr., Rogers and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 47 Pa. Commw. Page 198]

Philip Gold appeals from the Public School Employees' Retirement Board (board) adjudication denying his petition for the actuarial value of his deceased wife's interest in the retirement fund, under the Public School Employees' Retirement Code of 1959 (code).*fn1

The undisputed facts as found by the board were that on May 7, 1970, the decedent filed her application for retirement, to be effective May 16, 1970, the day following her retirement, naming petitioner her beneficiary and electing the maximum annuity option. Decedent died July 9, 1970.

The maximum annuity option provides the contributor with the highest monthly income; under it, if the aggregate amount of retirement allowance payments received by a contributor before death is less than the accumulated deductions, the designated beneficiary receives only the difference between the two.

Petitioner, however, claims a higher amount -- the actuarial value of the decedent's full allowance, an amount of $82,500.00, on the theory that decedent's application for retirement was an offer which had not been approved or accepted by the board. Therefore, petitioner alleges that decedent's death effectuated a withdrawal of the application/offer. Because decedent's death occurred within ninety days after her termination of services, petitioner alleges that the

[ 47 Pa. Commw. Page 199]

    board erred as a matter of law in failing to apply the automatic death benefit provision of Section 406, 24 P.S. ยง 3406(2), which provides that:

Any contributor who is entitled to a superannuation retirement allowance . . . and who shall die while in school service before filing with the retirement board a written application for retirement as heretofore provided, or who, within ninety (90) days after the termination of his school service and prior to the date of his death, had not entered upon withdrawal or superannuation retirement allowance or withdrawn his accumulated deductions, shall be considered as having elected to receive the actuarial equivalent of his full withdrawal allowance or superannuation allowance under Option 1, as the case may be, as provided in section 404 of this article, as of the date of his death. (Emphasis supplied.)

We note that decedent in this case did not "die while in school service before filing . . . a written application for retirement." That fact makes the first ...


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