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STELLA TAYLOR v. COMMONWEALTH PENNSYLVANIA (05/31/89)

decided: May 31, 1989.

STELLA TAYLOR, PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, STATE EMPLOYES' RETIREMENT SYSTEM, RESPONDENT



PETITIONER FOR REVIEW (STATE EMPLOYES' RETIREMENT SYSTEM).

COUNSEL

Thomas A. Crawford, Jr., Pittsburgh, for petitioner.

Richard D. Michlovitz, Harrisburg, for respondent.

Craig and Doyle, JJ., and Kalish, Senior Judge.

Author: Kalish

[ 127 Pa. Commw. Page 607]

This is a petition to review the decision and order of the State Employes' Retirement Board (Board), which denied Stella Taylor's (petitioner) application for disability retirement benefits. We affirm.

Petitioner worked for the State Department of Public Welfare, beginning March 17, 1972, and was enrolled in the State Employes' Retirement System. She was hospitalized with a foot injury in February, 1978, and returned to work on a part-time basis. On September 22, 1978, she was notified that her part-time work would terminate as of October 2, 1978. She was advised that she could request either a leave of absence without pay for six months, or a full time job if released by her physician. She was instructed to communicate with the personnel department.

[ 127 Pa. Commw. Page 608]

Petitioner's job was terminated on October 2, 1978. Petitioner did not withdraw her pension contributions and admits that she could have done so, and admits that she was further advised that she may have been qualified for a disability annuity. Instead, she filed a grievance with her union, which was subsequently settled with the Commonwealth. The agreement contained the proviso that petitioner would be placed on leave without pay status from October 3, 1978 through February 15, 1981. In addition, she could apply for disability retirement if she were on leave without pay. Her employer placed her on leave without pay, but petitioner did not apply for disability retirement. Petitioner rejected the agreement, and instead filed with the Pennsylvania Labor Relations Board (PLRB) an unfair practices charge against the state and her union. This charge was dismissed and petitioner appealed to this court, which affirmed the PLRB.

On August 15, 1986, about eight years after the termination of her employment, petitioner sought disability retirement, which was denied.

Our scope of review is limited to a determination of whether the Board violated constitutional rights, committed an error of law, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704; Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).

The present issue is whether the Board committed an error of law in interpreting the provisions of the State Employees' Retirement Code (Code), 71 Pa.C.S. §§ 5101-5956. The Code provides:

Disability Annuity. -- An active member or inactive member on leave without pay . . . shall, upon compliance with section 5907(k), be entitled to a disability annuity if prior to attainment of superannuation age he becomes ...


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