Charles M. Golden, Philadelphia, for appellants.
LeRoy S. Zimmerman, Atty. Gen., Susan J. Forney, Allen C. Warshaw, Deputy Atty. Gen., for appellees.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Hutchinson, J., concurs in the result.
This is an appeal from an opinion and order of the Commonwealth Court*fn1 sustaining the demurrer of the State Employees' Retirement Board ("Board"), to the petition of Henry J. Cianfrani seeking, inter alia, interest on retirement benefits withheld by the Board in compliance with the Public Employee Pension Forfeiture Act, Act of July 8,
, P.L. 752, No. 140, § 1 et seq., 43 P.S. § 1311 et seq., ("Act 140"), subsequently held by this Court to be unconstitutional as applied to Cianfrani, Cianfrani v. Comm., State Employees Retirement Board, 498 Pa. 204, 445 A.2d 737 (1982) (" Cianfrani I ").
This action was commenced by Cianfrani as a class action seeking to represent "all former Commonwealth employees who were members of the System whose retirement and benefit rights had vested prior to July 8, 1978 and whose benefits were wrongfully withheld by Respondent [Board] under Act 140." Before a hearing on the validity of the putative class was heard by the court as provided by Pa.R.C.P. No. 1707, the Board filed preliminary objections in the nature of a motion to strike and in the nature of a demurrer to the substance of the petition, the latter of which was sustained by Commonwealth Court and the case dismissed. From that disposition, direct appeal was taken to this Court. We affirm.
A preliminary objection in the nature of a demurrer is not to be sustained and the complaint dismissed unless the law says with certainty that no recovery is possible. Hoffman v. Misericordia Hosp. of Phila., 439 Pa. 501, 267 A.2d 867 (1970). Therefore, if any theory of law will support the claim raised by the petition, a dismissal is improper. Because the claim for interest presented by Cianfrani is unsupportable on either a statutory basis, a contractual basis or as a matter of the common law of interest, we hold that the Commonwealth Court correctly sustained the Board's demurrer.
For the purpose of our review of a dismissal on the pleadings in the nature of a demurrer, the averments of Cianfrani's petition, except to the extent that they constitute conclusions of law, must be taken as true, Freezer Storage, Inc. v. Armstrong Cash Co., 476 Pa. 270, 382 A.2d 715 (1978). The petition thus viewed avers that subsequent to July 8, 1978, the effective date of Act 140, Cianfrani and all other members of the class he seeks to represent, were
notified that their retirement benefits had been terminated pursuant to Act 140. Their accrued contributions were withheld and segregated by the Board into a separate fund until the ruling of this Court on May 28, 1982, in Cianfrani I, supra, holding that Act 140 was unconstitutional as applied to Cianfrani whose pension had vested prior to July 8, 1978, the effective date of Act 140. While the Board repaid the accumulated withheld benefits to Cianfrani, the Board "did not pay the accrued interest thereon," related to the period during which retirement and pension benefits were withheld by the Board. Cianfrani presented a demand for payment of interest which was denied by the Board by letter dated October 19, 1982, whereupon Cianfrani then commenced this action in the ...