No. 80-3-628, Appeal from the Order, entered May 29, 1980, in the Court of Common Pleas of Delaware County, Pennsylvania, Civil Action - Law, No. 79-16641
Robert A. Graci, Rex R. Gary, Asst. Dist. Attys., Susan J. Forney, Deputy Atty. Gen., for appellants.
Christopher F. Gorbey, Chester, for appellee.
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott and Zappala, JJ. Zappala, J., files a concurring opinion. Roberts, C.j., files a dissenting opinion in which Larsen, J., joins. Hutchinson, J., did not participate in the consideration or decision of this case.
This appeal relates to a denial by the Court of Common Pleas of Delaware County to issue a writ of mandamus compelling the Officers and Employees Retirement Board
(appellee) to discontinue the payment of retirement benefits to a pensioner under the alleged authority of the Public Employee Pension Forfeiture Act (Forfeiture Act), Act of July 8, 1978 P.L. 752, No. 140 § 1 et seq., 43 P.S. § 1311 et seq. (Supp.1983-84). On May 28, 1980 the common pleas court filed an opinion and order granting the instant appellee's motion for summary judgment and dismissed the complaint relying upon the Commonwealth Court's decision in Burello v. Commonwealth of Pennsylvania, State Employees' Retirement System, 49 Pa. Commonwealth Ct. 364, 411 A.2d 852 (1980).*fn1 This appeal came directly to this Court pursuant to section 722(7) of the Judicial Code, 42 Pa.C.S. § 722(7).
While this appeal was pending and prior to the date scheduled for oral argument this Court decided Bellomini v. State Employees' Retirement Board, 498 Pa. 204, 445 A.2d 737 (1982). Because of the similarities of the issues in Bellomini with those presented here appellants requested and they were granted a continuance of oral argument and given leave to file a supplemental brief by order of this Court dated October 7, 1982. In due course the supplemental brief and a responsive brief by appellee were filed and oral argument heard on December 8, 1982. A decision affirming the trial court's dismissal of the complaint in mandamus was filed March 31, 1983. Commonwealth ex rel. Zimmerman v. Officers and Employees' Retirement Board, 501 Pa. 293, 461 A.2d 593 (1983). A request for reargument was granted and oral argument was again heard on October 18, 1983. We now reaffirm the initial decision entered by this Court.
The complaint in mandamus called upon the court of common pleas to order appellees to discontinue payments of pension benefits to a pensioner based upon the retroactive provision of section 7 which purported to extend the terms of the Forfeiture Act to December 1, 1972 although the
effective date of the Forfeiture Act was July 8, 1978.*fn2 It is that attempt to divest previously vested rights of a public employee or official by subsequent legislative judgment that we find to be a ...