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ROBERT E. O'BRIEN v. COMMONWEALTH PENNSYLVANIA (12/14/83)

decided: December 14, 1983.

ROBERT E. O'BRIEN, APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, STATE EMPLOYES' RETIREMENT SYSTEM, APPELLEE



NO. 2 MIDDLE DISTRICT APPEAL DOCKET, 1983, Appeal from Order of the Commonwealth Court of Pennsylvania of October 18, 1982 to No. 1268 C.D. 1982, sustaining the State Employes' Retirement System's Preliminary Objections

COUNSEL

Thomas E. Sterling, State College, for appellant.

Marsha V. Mills, Harrisburg, for appellee.

Roberts, C.j., and Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Roberts, C.j., and McDermott, J., concur in the result. Nix, J., did not participate in the consideration or the decision of this case.

Author: Hutchinson

[ 503 Pa. Page 416]

OPINION OF THE COURT

Appellant filed a notice of appeal from Commonwealth Court's October 18, 1982 order dismissing what he characterizes as a petition addressed to that court's original jurisdiction. In Commonwealth Court he sought an order requiring our Retirement Board to grant him a further hearing on the method of computing his state pension, a matter already twice determined on appellate review of final agency orders. Commonwealth Court, assuming it had original jurisdiction, nevertheless dismissed appellant's action as barred by res judicata.*fn1

In this Court appellee renews its challenge to the Commonwealth Court's original jurisdiction under Section 761 of our Judicial Code. 42 Pa.C.S. § 761. If, indeed, Commonwealth Court's jurisdiction over this case is appellate, see 42 Pa.C.S. § 763,*fn2 and not original, then appellant has no right of direct appeal to this Court under 42 Pa.C.S. § 723(a), but must seek discretionary review on a petition for allocatur. See 42 Pa.C.S. § 724. For the reasons that follow we agree with appellee that this action does not fall within Commonwealth Court's original jurisdiction and hold appellant has no right of direct appeal. Moreover, treating appellant's

[ 503 Pa. Page 417]

    notice of appeal as a petition for allocatur, we grant it and affirm.*fn3

Appellant retired from state service on June 30, 1967, entitled to a state pension. In applying for that pension he asked our Retirement Board to allow him to buy back his United States military service from February 17, 1941, when he was inducted from state service with our Welfare Department under the President's Executive Order, until his discharge on September 30, 1954. In December, 1969, appellant received notice from the then Secretary of the Retirement Board of an adjudication allowing him only five years of military buy back, from February 17, 1941 to February, 1946. From the opinion of the Dauphin County Court of Common Pleas, reported sub nom State Employees Retirement Board v. O'Brien, 93 Dauphin 101 (1970), at its No. 825 Commonwealth Docket, 1969, it appears appellant was eligible for release from the United States Armed Forces in February, 1946, but chose to remain on active duty until September 30, 1954.*fn4 Based on that fact, Dauphin County Common Pleas held petitioner was not entitled to buy back any military time beyond February, 1946, the date on which it determined he was eligible for release from federal military service. As a matter of statutory interpretation Common Pleas held the legislature intended to allow buy back for federal military service between September 16, 1940 and July 27, 1953 only for the included time interval between induction from state employment under executive order and eligibility for release. Thus it held actual discharge did not control where a former state employee chose to remain in the federal armed forces

[ 503 Pa. Page 418]

    after he was eligible for release. This decision affirmed the administrative adjudication limiting the statutory buy back to the period from compulsory induction to eligibility for discharge. The order so limiting the buy back became final when we denied appellant's request for allocatur on December 4, 1970 and the time for appeal or petition for certiorari to the United States Supreme Court expired. The section of the State Employees Retirement Code of 1959 specifically applicable to ...


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