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HARRY NEFF v. TRUSTEES PUBLIC SCHOOL EMPLOYEES' RETIREMENT BOARD PENNSYLVANIA ET AL. (07/17/80)

decided: July 17, 1980.

HARRY NEFF, PETITIONER
v.
TRUSTEES OF THE PUBLIC SCHOOL EMPLOYEES' RETIREMENT BOARD OF PENNSYLVANIA ET AL., RESPONDENTS



Original jurisdiction in case of Harry Neff v. Trustees of the Public School Employees' Retirement Board of Pennsylvania, et al.

COUNSEL

Joel D. Beaver, with him Daniel Sherman, for petitioner.

Thomas J. Mangan, Jr., Assistant Attorney General, with him Raymond Kleiman and Norman Watkins, Deputy Attorneys General, and Edward G. Biester, Jr., Attorney General, for respondents.

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

Author: Craig

[ 53 Pa. Commw. Page 101]

Before us are preliminary objections of the Trustees of the Public School Employees' Retirement Board of Pennsylvania (board) to a petition for review in the nature of a complaint in equity of Harry Neff (petitioner), who seeks retirement benefits based upon 40.8 years of active employment.

Petitioner in his complaint alleges that he was employed by the Philadelphia School District (school district) from 1934 until his retirement at the end of June, 1977. During each of the later years of his employment, petitioner received from the Public School Retirement System of Pennsylvania written notice of the contributions made to his account and the number of years service credited to his account.

Allegedly relying upon such an annual written notice which showed that he had a cumulative credit of 39.8 years of service as of June 30, 1976, the petitioner worked an additional year, to June 30, 1977, at which time he retired believing that he had 40.8 years of credited service with the school district.

However, the petitioner began receiving retirement payments based upon 37.9 years of actual service. Petitioner does not aver receipt of any written notice from the board explaining the discrepancy between the amount of the payments he received and the amount of time he worked.

The board in its preliminary objections first contends that this court lacks jurisdiction to hear petitioner's complaint. The board argues that the issuance of retirement checks to the petitioner based upon 37.9 years of service constituted an adjudication as defined by Section 101 of the Administrative Agency Law, 2 Pa. C.S. § 101, so that petitioner's complaint in equity, filed more than ten months after petitioner received his first check, is allegedly an appeal outside of the thirty-day limitation expressed in the Judicial Code, 42

[ 53 Pa. Commw. Page 102]

Pa. C.S. § 5571; i.e., that the time for appeal having passed, we can entertain no proceeding by petitioner.

Therefore, the first issue is whether the payments to the petitioner, as averred in the complaint, constituted an adjudication. There is no averment of any other ...


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