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RICHARD B. KLEIN v. COMMONWEALTH PENNSYLVANIA (07/27/87)

decided: July 27, 1987.

RICHARD B. KLEIN, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, STATE EMPLOYEES' RETIREMENT BOARD, RESPONDENT



Appeal from the Order of the State Employees' Retirement Board in case of In The Matter of: Richard B. Klein, SS No. 159-30-9618, Non-Disability Claimant, dated January 22, 1986.

COUNSEL

Richard B. Klein, with him, Henry T. Reath and Judith N. Renzulli, Duane, Morris & Heckscher, for petitioner.

Susan J. Forney, Senior Deputy Attorney General, with her, Nicholas Joseph Marcussi, Deputy Attorney General, Andrew S. Gordon, Chief Deputy Attorney General, Chief, Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondent.

President Judge Crumlish, Jr., Judges Craig, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by Judge Barry. Judge MacPhail did not participate in the decision in this case.

Author: Barry

[ 108 Pa. Commw. Page 40]

Richard B. Klein (claimant) appeals an order of the State Employees' Retirement Board (Board) denying his request for reinstatement to class E-1 status under the State Employees' Retirement Code of 1959, Act of June 1, 1959, P.L. 392, as amended, formerly 71 P.S. § 1725-101 -- § 1825-809, repealed by the Act of March 1, 1974, P.L. 125, 71 Pa. C.S. § 5101-§ 5956 (1974 Code).*fn1

The facts are undisputed. Claimant first became a member of the State Employees' Retirement System (system) on May 4, 1967, when he accepted a position as special assistant attorney general. On December 30, 1971, he was appointed judge for the Court of Common Pleas of Philadelphia County and, thus, became eligible for class E-1 status under the 1959 Code. When this appointment expired on January 6, 1974, claimant elected to withdraw his accumulated deductions effective February 26, 1974. On January 5, 1976, following a successful election, claimant began serving a new term as common pleas judge. On January 7, 1976, he requested

[ 108 Pa. Commw. Page 41]

    reinstatement to the class E-1 status he had held during his first term as judge. Claimant was given credit for all his years of prior service and he was permitted to repay the contributions he had previously withdrawn. However, his request for reinstatement to class E-1 status was denied on grounds that such reinstatement is prohibited by the 1974 Code. The Board affirmed this determination and the present appeal followed.

We must decide two questions. First, whether the Board's refusal to permit claimant to re-enter the system as a class E-1 contributor is an unconstitutional impairment of his retirement contract under the 1959 Code. Second, whether the Board's refusal to permit claimant to re-enter the system as a class E-1 contributor is a direct violation of the consent decree entered into by claimant and all the members of the class action suit in Catania v. State Employees' Retirement Board, 71 Pa. Commonwealth Ct. 393, 455 A.2d 1250 (1983).

With respect to the first argument, claimant relies on the following language found in Section 208 of the 1959 Code:

When a contributor ceases to be a state employe his credited service is cancelled if he withdraws his accumulated deductions, but if he returns or has returned to service as a State employe and a contributor the credited service forfeited by him at the time of separation from service shall be restored in full to him as of the date he shall have restored to the fund, to the credit of the members' annuity savings account in such manner as may be agreed upon by the ...


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