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NANCY W. MCCARRELL ET AL. v. CUMBERLAND COUNTY EMPLOYEE'S RETIREMENT BOARD ET AL. (09/27/88)

decided: September 27, 1988.

NANCY W. MCCARRELL ET AL., APPELLANTS
v.
CUMBERLAND COUNTY EMPLOYEE'S RETIREMENT BOARD ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Cumberland County in the case of Nancy W. McCarrell, Florence R. Rehr, J. Harold Widder, and Calantha Bixler, on behalf of themselves and all others similarly situated v. Cumberland County Employee's Retirement Board, Marcia L. Myers, Robert A. Adams, Robert J. Moore, Jerry L. Nailor, Alfred Whitcomb, and County of Cumberland v. Hay/Huggins Company, Inc., No. 7 Equity 1986.

COUNSEL

Robert W. Barton, Killian & Gephart, for appellants.

Bruce F. Bratton, Martsolf & Bratton, for appellees.

Ronald M. Lucas, with him, Norman P. Hetrick, Tive, Hetrick & Pierce, P.C., for appellee, Hay/Huggins Company, Inc.

Judges Craig and Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 120 Pa. Commw. Page 95]

This is an appeal from an Order of the Court of Common Pleas of Cumberland County granting summary judgment in favor of the Cumberland County Employee's Retirement Board (Board).

Factual History

Retirees of the Cumberland County Employee's Retirement System (appellants) initiated this action by the

[ 120 Pa. Commw. Page 96]

    filing of a complaint seeking both equitable and declaratory relief. Count 1 of the complaint averred that the Board violated its fiduciary obligation under the County Pension Law*fn1 to those retirees of Cumberland County who were drawing a county pension. Count 2 of the complaint alleged that the Board utilized monies earned on the investment of funds contained in the County Employee's Retirement Fund (Fund) to reduce or eliminate the amount paid by the County for administration of the system, in violation of Section 5 of the Law, 16 P.S. § 11655. Count 3 of the complaint contended that the Board wrongfully allowed funds to be held in the name of private individuals and companies in dereliction of Section 8 of the Law, 16 P.S. § 11658, which requires that the County Treasurer maintain these funds.

The appellants sought, inter alia, relief in the form of an order declaring unlawful, the method of payment to the Fund utilized by the County. Appellants sought further relief in the form of an order requiring that the Board grant a cost of living increase to the retirees for the years 1983 and 1985. This request was based upon the allegation that the Board had breached its fiduciary obligation in failing to grant such increases for those years due to its offset of the County contribution to the Fund.

The Board joined, as an additional defendant, its actuarial consultant, the Hay/Huggins Company, Inc. The Board reasoned that because it acted upon the advice and direction of this company in fulfilling its obligations pursuant to the Law, the company should be held jointly liable in the event that the court found in favor of the retirees. The ...


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