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JAY L. FINGERET v. RETIREMENT BOARD ALLEGHENY COUNTY (05/01/84)

decided: May 1, 1984.

JAY L. FINGERET, MARK S. FRANK AND WILLIAM L. STEINER, ON BEHALF OF THEMSELVES AND ALL OTHER SIMILARLY SITUATED PERSONS
v.
THE RETIREMENT BOARD OF ALLEGHENY COUNTY, JAY L. FINGERET, APPELLANT. MARK S. FRANK AND WILLIAM L. STEINER, ON BEHALF OF THEMSELVES AND ALL OTHER SIMILARLY SITUATED PERSONS, PETITIONERS V. THE RETIREMENT BOARD OF ALLEGHENY COUNTY AND JAY L. FINGERET, RESPONDENTS. THE RETIREMENT BOARD OF ALLEGHENY COUNTY, PETITIONER V. JAY L. FINGERET, MARK S. FRANK AND WILLIAM L. STEINER, ET AL., RESPONDENTS



Appeals from the Orders of the Court of Common Pleas of Allegheny County in cases of Jay L. Fingeret, Mark S. Frank and William L. Steiner, on behalf of themselves and all other similarly situated persons who were employees of Allegheny County and left their employment with Allegheny County within six years before the filing of this action, having been employed by said County for a period of at least two consecutive years but for a period insufficient to create eligibility to receive the benefits of a retirement allowance v. The Retirement Board of Allegheny County, No. GD 80-31317, dated July 17, 1981 and May 26, 1982.

COUNSEL

E. J. Strassburger, Strassburger, McKenna, Messer, Shilobod & Gutnick, for petitioners, Fingeret, Frank and Steiner.

Anthony J. Martin, Martin and Martin, P.C., for respondent, The Retirement Board of Allegheny County.

Judges Rogers, Colins and Barbieri, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 82 Pa. Commw. Page 160]

Each, Jay L. Fingeret, Mark S. Frank and William L. Steiner, was employed by the County of Allegheny (county) as a law clerk during two consecutive years between 1974 and 1980. Each made contributions to the County Employer's Retirement Fund as required by Section 1708(a) of the Second Class County Code (Code), Act of July 28, 1953, P.L. 723, as amended, 16 P.S. § 4708(a). None was employed by the county for a period of time sufficient to qualify him for a retirement allowance. When each left county employment, the Retirement Board of Allegheny County (Board) refunded his contributions to the fund but paid him no interest on the contributions.

Fingeret, Frank and Steiner commenced a class action*fn1 in the Court of Common Pleas of Allegheny County against the Board seeking a declaratory judgment that the Board's practice of refusing to pay interest on refunded contributions to the fund made during the first two years of an employee's employment was contrary to Section 1714(a) of the Code, Act of July 28, 1953, P.L. 723, as amended, 16 P.S. § 4714(a).

The Board filed an answer and new matter. The plaintiffs filed a reply and a motion for judgment on

[ 82 Pa. Commw. Page 161]

    the pleadings. The Board also filed a motion for summary judgment. The issues before the court were (1) whether the Board's practice of not paying interest on contributions made during the first two years of employment was in accordance with Section 1714(a) of the Code; (2) if interest was payable, whether the Board's practice of not paying interest on contributions made during a calendar year in which an employee was not employed by the county for the entire calendar year was consistent with Section 1714(a) of the Code; and (3) whether the statute of limitations applicable to claims for interest on refunded contributions was four years or six years.

In an opinion and order made on July 17, 1981 denying the Board's motion for summary judgment and granting in part the plaintiffs' motion for judgment on the pleadings, the common pleas court held (1) that Section 1714(a) did not authorize the Board's practice of refusing to pay interest on contributions made during the first two years of employment and (2) that the Board's practice of not paying interest on contributions made during a calendar year in which an employee was not employed by the county for the entire calendar year was consistent with Section 1714(a).

The court did not decide the statute of limitations issue, stating that "the record presently before us is deficient as to how employment with the County is accomplished which is essential in the determination of the limiting period." On the last point discovery was had. The plaintiffs filed a motion for partial summary judgment and supporting affidavits. By opinion and order dated May 26, 1982, the court denied the motion for partial summary judgment. The court held that the statute of limitations as to the claims of all members of the class was four years.

[ 82 Pa. Commw. Page 162]

To our docket number 1427 C.D. 1982, Fingeret appealed from the court's order of May 28, 1982 dismissing him as a plaintiff and class representative because he terminated his employment more than four years prior to institution of the action (the statute of limitation issue). To our docket number 307 Misc. Docket No. 3, Frank and Steiner appealed from the court's July 17, 1981 order denying their motions for partial summary judgment and ordering that the "liability of the Retirement Board of Allegheny County for interest shall be for only whole calendar years and not for any fraction of a year," (the issue concerning the entitlement of contributors to interest on contributions made during calendar years in which they were not employed for the whole calendar year), and the court's May 26, 1982 order mandating that the statute of limitations applicable to all members of the class was four years (the statute of limitation issue). These orders were certified for appeal by the court's May 28, ...


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