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LOTTIE C. DINGEL v. COMMONWEALTH PENNSYLVANIA (09/29/81)

decided: September 29, 1981.

LOTTIE C. DINGEL, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, STATE EMPLOYES' RETIREMENT SYSTEM, AND PENNSYLVANIA STATE POLICE DEPARTMENT AND JAY C. HILEMAN, MAJOR, IN HIS CAPACITY AS DIRECTOR, BUREAU OF PERSONNEL, PENNSYLVANIA STATE POLICE, RESPONDENTS



Original jurisdiction in case of Lottie C. Dingel v. State Employees' Retirement System of the Commonwealth of Pennsylvania, and Pennsylvania State Police Department, and Jay C. Hileman, Major, in his capacity as Director, Bureau of Personnel, Pennsylvania State Police.

COUNSEL

Paul V. Ressler, for petitioner.

Francis S. O'Brien, Jr., Assistant Attorney General, with him Thomas J. Mangan, Jr., for respondents.

Judges Mencer, MacPhail and Palladino, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 62 Pa. Commw. Page 80]

Having filed a petition for review, Petitioner, a civilian employed by the Pennsylvania State Police (State Police), seeks relief under this Court's original, or in the alternative appellate, jurisdiction, from actions of the Respondent-State Police and the Respondent-State Employees' Retirement System (Retirement System). We dismiss the petition for review.

In October of 1971 Petitioner suffered a work-related injury in the scope of her employment and consequently began a leave without pay. On December 12, 1979, while still on leave without pay, Petitioner, through her attorney, wrote to the Retirement System to request information about "her entitlement to pension and/or disability pension benefits. . . ." After her injury, Petitioner received one letter from the Retirement System and two letters from the State Police, concerning her eligibility for a retirement and/or disability annuity. These three letters are reproduced in the parties' briefs which, pursuant to Pa. R.A.P. 1515 and Pa. R.A.P. 1516, comprise the entire record for consideration by this Court.

[ 62 Pa. Commw. Page 81]

I. Entitlement To A Disability Annuity

To be eligible for a disability annuity under Section 5308 of the State Employees' Retirement Code (Code), as amended, 71 Pa. C.S. § 5308, a state employee must satisfy three criteria: (1) status as an active member or an inactive member on leave without pay, who has five years of service credit; (2) physical or mental incapacity before retirement age, which prevents continued job performance, and (3) qualification under Section 5905(c)(1) of the Code, 71 Pa. C.S. § 5905(c)(1).

While prior to this action Petitioner satisfied the first two eligibility criteria, Petitioner has never satisfied, nor attempted to satisfy, the third eligibility criterion, i.e., qualification under Section 5905(c)(1) of the Code. Section 5905(c)(1) of the Code states that "where the [Retirement System] Board has received an application for a disability annuity . . . , the board shall . . . have the applicant examined and . . . make a finding of disability and whether or not the disability is service connected or non-disability. . . ." (Emphasis added.) Thus, an employee's application for a disability annuity activates the Retirement System administrative process.

The triggering function of the employee's application is also expressed in Section 5704(a) of the Code, 71 Pa. C.S. § 5704(a): "A member who has made application for a disability and has been found to be eligible in accordance with the provisions of section 5905(c)(1) . . . shall receive a disability annuity. . . ." (Emphasis added.)

By letter dated December 27, 1979, the Retirement System informed Petitioner, through her counsel, that "to qualify for disability retirement benefits, a member must, while on the payroll or on a Leave Without Pay status, submit an application. . . ." (Emphasis

[ 62 Pa. Commw. Page 82]

    added.) However, despite the admonition of the Retirement System and the clear requirements of the Code, Petitioner failed to make an application for a disability annuity.

Addressing this Court's original jurisdiction under Pa. R.A.P. 1532 and Pa. R.A.P. 1561, Petitioner asks this Court to "[o]rder . . . a proper administrative determination of Petitioner's ...


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