No. 20 March Term, 1978, Appeal from the Order of the Commonwealth Court of Pennsylvania at No. 1211 C.D. 1973
Patrick H. Mahady, Mahady & Mahady, Greensburg, for appellant.
Raymond Kleiman, Deputy Atty. Gen., Harrisburg, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Manderino, J., did not participate in the decision of this case. Larsen, J., files a dissenting opinion.
This appeal is from an order of the Commonwealth Court sustaining preliminary objections of appellee, The State Employes' Retirement Board of the Commonwealth of Pennsylvania, and dismissing a complaint in mandamus filed by appellant, Louis Packler.
Appellant was a member of the Pennsylvania State Police from 1936 until his retirement in 1973. Prior to 1936,
appellant had served four years with the Pennsylvania National Guard. In computing appellant's years of service for retirement purposes, the Retirement Board did not include appellant's four years of service with the Pennsylvania National Guard. Appellant filed a complaint in Commonwealth Court seeking a writ of mandamus to compel the Retirement Board to include those four years in calculating his years of service. Appellant based his claim on § 204 of the State Employes' Retirement Code of 1959,*fn1 which provides:
"(1) In computing the length of service of a contributor for retirement purposes, a year of service shall mean a period of twelve (12) months during which a contributor is a State employe and for which he receives an annual salary or other compensation. . . .
"(2) Any person who became a member of the Pennsylvania Motor Police subsequent to January 1, 1938, or a member of the Pennsylvania State Police subsequent to June 1, 1943, and who shall have been at the time theretofore in the employ of the Commonwealth shall receive credit for any such service prior to January 1, 1938, or prior to June 1, 1943, as the case may be . . . ." 71 P.S. § 1725-204.
The Retirement Board filed preliminary objections, including, inter alia, a demurrer to appellant's complaint. Following an answer by appellant to the preliminary objections, the Commonwealth Court sustained the Retirement Board's demurrer, holding that since appellant had joined the State Police prior to January 1, 1938, § 204(2) was inapplicable. Packler v. St. Employes' Ret. Bd., 15 Pa. Commw. 143, 325 A.2d 335 (1974). On appeal to this court, we vacated the Commonwealth Court's order, holding that while that court's decision under § 204(2) was ...