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AMERICAN FEDERATION STATE v. COMMONWEALTH PENNSYLVANIA ET AL. (09/02/83)

decided: September 2, 1983.

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, BY ITS TRUSTEE AD LITEM, EDWARD J. KELLER, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA ET AL., RESPONDENTS. DENNIS J. SOLECKI AND LEA F. BARBUSH ET AL., PETITIONERS V. COMMONWEALTH OF PENNSYLVANIA ET AL., RESPONDENTS. JOINT BARGAINING COMMITTEE OF THE PENNSYLVANIA SOCIAL SERVICES UNION ET AL., PETITIONERS V. COMMONWEALTH OF PENNSYLVANIA ET AL., RESPONDENTS



Original Jurisdiction in cases of American Federation of State, County and Municipal Employees, AFL-CIO, by its Trustee Ad Litem, Edward J. Keller v. Commonwealth of Pennsylvania, The Honorable Richard Thornburgh, Governor of the Commonwealth of Pennsylvania, State Employees' Retirement Board, Robert L. Cusma, Executive Director of the State Employees' Retirement Board, and R. Budd Dwyer, Treasurer of the Commonwealth of Pennsylvania; Dennis J. Solecki and Lea F. Barbush, as Individuals, on behalf of themselves and all others similarly situated v. Commonwealth of Pennsylvania, The Honorable Richard Thornburgh, Governor of the Commonwealth of Pennsylvania, State Employees' Retirement Board, Robert L. Cusma, Executive Director of the State Employees' Retirement Board, and R. Budd Dwyer, Treasurer of the Commonwealth of Pennsylvania; and Joint Bargaining Committee of the Pennsylvania Social Services Union and Pennsylvania Employment Security Employee's Association, Locals 668 and 675, SEIU, AFL-CIO, by its Trustees Ad Litem, Andrew L. Stern and Harry Beshgetoorian, Pennsylvania Social Services Union, by its Trustee Ad Litem, Andrew L. Stern, Frank Catanese, Individually and on behalf of others similarly situated, and Lillian Swartz, Individually and on behalf of others similarly situated v. Commonwealth of Pennsylvania, The Honorable Richard Thornburgh, Governor of the Commonwealth of Pennsylvania, State Employees' Retirement Board, Robert L. Cusma, Executive Director of the State Employees' Retirement Board and R. Budd Dwyer, Treasurer of the Commonwealth of Pennsylvania.

COUNSEL

Richard Kirschner, with him Lee W. Jackson and Stuart W. Davidson, Kirschner, Walters, Willig, Weinberg & Dempsey, for petitioners, American Federation of State, County and Municipal Employees et al. and Dennis J. Solecki and Lea F. Barbush et al.

Bruce M. Ludwig, Stephen A. Sheller & Associates, for petitioners, Joint Bargaining Committee of the Pennsylvania Social Services Union et al.

James J. Kutz, Deputy Attorney General, with him Allen C. Warshaw, Deputy Attorney General, Chief of Special Litigation, and LeRoy S. Zimmerman, Attorney General, for respondents.

President Judge Crumlish, Jr. Memorandum Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 77 Pa. Commw. Page 39]

The Petitioners in three consolidated cases*fn1 seek to enjoin permanently the enforcement of Act No. 31 of 1983 (Act 31) which requires most Commonwealth employees, participants in the State Employees' Retirement System, to contribute an additional 1 1/4% of their salary to the State Employees' Retirement Fund (Fund). Before us are the Petitioners' applications for a preliminary injunction. We grant the preliminary injunction and order the Commonwealth to refund immediately

[ 77 Pa. Commw. Page 40]

    all employee contributions in excess of the five (5%) percent basic contribution rate heretofore collected.

History of Case

The State Employees' Retirement Code*fn2 (Retirement Code), which requires employee participation in the retirement system, imposes on an employee certain obligations to the system, including the responsibility to make "regular member contributions" to the Fund*fn3 in the amount of five (5%) percent of his compensation. This contribution, which is deducted from the employee's salary, was established by the Legislature with the specification that:

[I]n no case shall any member's rate [of contribution] be greater than his contribution rate on the effective date of this part so long as he does not elect additional coverage or membership in another class of service.*fn4 (Emphasis added.)

During the 1983 General Assembly session, Senate Bill No. 385 was introduced to amend Title 24 of the Pennsylvania Consolidated Statutes (Education).*fn5 This Bill was amended several times*fn6 before its enactment into law on July 22, 1983, as Act 31. In its final form, Act 31, in addition to amending both Title 24 and the Public ...


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