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AMERICAN FEDERATION STATE v. COMMONWEALTH PENNSYLVANIA (11/12/87)

decided: November 12, 1987.

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, BY ITS TRUSTEE AD LITEM, EDWARD J. KELLER, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, THE HONORABLE RICHARD THORNBURGH, GOVERNOR OF THE COMMONWEALTH OF PENNSYLVANIA; STATE EMPLOYEES' RETIREMENT BOARD: ROBERT L. CUSMA, EXECUTIVE DIRECTOR OF THE STATE EMPLOYEES' RETIREMENT BOARD, AND R. BUDD DWYER, TREASURER OF THE COMMONWEALTH OF PENNSYLVANIA, RESPONDENTS. JOINT BARGAINING COMMITTEE OF THE PENNSYLVANIA SOCIAL SERVICES UNION AND PENNSYLVANIA EMPLOYMENT SECURITY EMPLOYEES' ASSOCIATION, LOCALS 668 AND 675, SEIU, AFL-CIO, BY ITS TRUSTEE AD LITEM, ANDREW L. STERN AND HARRY BESHGETOORIAN; PENNSYLVANIA SOCIAL SERVICES UNION, BY ITS TRUSTEE AD LITEM, ANDREW L. STERN; FRANK CATANESE, INDIVIDUALLY AND ON BEHALF OF OTHERS SIMILARLY SITUATED AND LILLIAN SWARTZ, INDIVIDUALLY AND ON BEHALF OF OTHERS SIMILARLY SITUATED, PETITIONERS V. COMMONWEALTH OF PENNSYLVANIA, THE HONORABLE RICHARD THORNBURGH, GOVERNOR OF THE COMMONWEALTH OF PENNSYLVANIA, ET AL., RESPONDENTS. DENNIS J. SOLECKI AND LEA F. BARBUSH, AS INDIVIDUALS, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PETITIONERS V. COMMONWEALTH OF PENNSYLVANIA, THE HONORABLE RICHARD THORNBURGH, GOVERNOR OF THE COMMONWEALTH OF PENNSYLVANIA, ET AL., RESPONDENTS



Original Jurisdiction in case of American Federation of State, County and Municipal Employees, AFL-CIO, by its Trustee Ad Litem, Edward J. Keller v. Commonwealth of Pennsylvania, The Honorable Richard Thornburgh, Governor of the Commonwealth of Pennsylvania; State Employees' Retirement Board, Robert L. Cusma, Executive Director of the State Employees' Retirement Board, and R. Budd Dwyer, Treasurer of the Commonwealth of Pennsylvania; in case of Joint Bargaining Committee of the Pennsylvania Social Services Union and Pennsylvania Employment Security Employees' Association, Locals 668 and 675, SEIU, AFL-CIO, by its Trustee Ad Litem, Andrew L. Stern and Harry Beshgetoorian; Pennsylvania Social Services Union, by its Trustee Ad Litem, Andrew L. Stern; Frank Catanese, individually and on behalf of others similarly situated and Lillian Swartz, individually and on behalf of others similarly situated v. Commonwealth of Pennsylvania, The Honorable Richard Thornburgh, Governor of the Commonwealth of Pennsylvania, et al., and in case of Dennis J. Solecki and Lea F. Barbush, as individuals, on behalf of themselves and all others similarly situated v. Commonwealth of Pennsylvania, The Honorable Richard Thornburgh, Governor of the Commonwealth of Pennsylvania et al.

COUNSEL

Stuart W. Davidson, with him, Lee W. Jackson, Alaine S. Williams, and Richard Kirschner, Kirschner, Walters, Willig, Weinberg & Dempsey, for petitioners, American Federation of State, County and Municipal Employees, AFL-CIO, by its Trustee Ad Litem, Edward J. Keller, and petitioners Dennis J. Solecki and Lea F. Barbush, et al.

Bruce M. Ludwig, Stephen A. Sheller & Associates, for petitioners, Joint Bargaining Committee of Pennsylvania Social Services Union, Pennsylvania Employment Security Employees' Association, et al., and petitioners Frank Catanese and Lillian Swartz, et al.

James J. Kutz, Deputy Attorney General, with him, Allen C. Warshaw, Senior Deputy Attorney General, Chief Litigation Section, LeRoy S. Zimmerman, Attorney General, for respondents, Commonwealth of Pennsylvania, The Honorable Richard Thornburgh, Governor of the Commonwealth of Pennsylvania, et al.

Nicholas Joseph Marcucci, Attorney-in-charge, and Andrew H. Cline, Deputy General Counsel, Office of General Counsel, for respondent, State Employees' Retirement Board, et al.

Gary M. Lightman, with him, Anthony C. Busillo, II, Mancke, Lightman & Wagner, for respondents, State Police Lodges of the Fraternal Order of Police.

President Judge Crumlish, Jr., Judges Craig, MacPhail, Barry and Colins. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 111 Pa. Commw. Page 84]

Petitioners*fn1 and respondent State Employees' Retirement Board (Board) in these three consolidated

[ 111 Pa. Commw. Page 85]

    matters cross-motion for summary judgment on a motion for enforcement of our March 7, 1984 Order in AFSCME v. Commonwealth, 80 Pa. Commonwealth Ct. 611, 472 A.2d 746 (1984), aff'd sub nom. Association of Pennsylvania State College and University Faculties v. State System of Higher Education, 505 Pa. 369, 479 A.2d 962 (1984), directing in part that:

Respondents, jointly and severally, together with their agents and representatives, are hereby permanently enjoined from collecting pension contributions from employees who were members of the State Employes' Retirement System prior to the enactment of Act 31 of 1983, in excess of the five (5%) percent basic contribution rate. . . .

80 Pa. Commonwealth Ct. at 618, 472 A.2d at 749 (emphasis in original).

We held in that opinion that Section 7 of Act 31 of 1983, 71 Pa. C.S. ยง 5505.1*fn2 (Act 31), which requires active members in the State Employes' Retirement System (SERS) to contribute an additional 1 1/4% of their salary to the SER Fund, was an unconstitutional impairment ...


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