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PENNSYLVANIA STATE LODGE FRATERNAL ORDER POLICE v. DONALD BAILEY (08/04/89)

decided: August 4, 1989.

PENNSYLVANIA STATE LODGE OF THE FRATERNAL ORDER OF POLICE, BY ITS TRUSTEE AD LITEM FRANCIS P. BASCELLI ET AL., PETITIONERS,
v.
DONALD BAILEY, AUDITOR GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA AND THE OFFICE OF AUDITOR GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA, RESPONDENTS



PETITION FOR REVIEW ยง 761.

COUNSEL

Gary M. Lightman, Anthony C. Busillo, II, Michael J. McGovern, Harrisburg, for petitioners.

William T. Simmons, Robert J. Schwartz, Deputy Chief Counsel, with him, Paul Yatron, Chief Counsel, Harrisburg, for Auditor Gen.

Robert C. Bell, Amicus Curiae for Public Employees Retirement Study Commission.

McGinley, Smith (p.), JJ., and Narick, Senior Judge. McGinley, J., dissents.

Author: Smith

[ 128 Pa. Commw. Page 73]

Petitioners, Pennsylvania State Lodge of the Fraternal Order of Police, Thomas Megless and William Evens, filed a petition for declaratory judgment against Donald Bailey and

[ 128 Pa. Commw. Page 74]

    the Office of the Auditor General of the Commonwealth of Pennsylvania (Respondents).*fn1 Petitioners and Respondents have filed cross motions for summary judgment; Petitioners' motion is denied and Respondents' motion is granted.

The issue is whether Section 402(e)(2) of the Municipal Pension Plan Funding and Standard Recovery Act (Act)*fn2 requires municipalities to base the proportion of state aid distributed to its pension plans upon a unit allocation formula*fn3 or whether each municipality, which receives General Municipal Pension System State Aid, is allowed to annually determine the portion of its aid to be distributed among its various pension funds, subject to the requirements of Chapter 3 of the Act.*fn4

A motion for summary judgment is an appropriate procedural device in a declaratory judgment proceeding. Pennsylvania Public Utility Commission Bar Association v. Thornburgh, 62 Pa. Commonwealth Ct. 88, 434 A.2d 1327 (1981), affirmed, 498 Pa. 589, 450 A.2d 613 (1982). In order for a summary judgment motion to be sustained, the case must be clear and free from doubt, the moving party must prove that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; and the record must be viewed in the light most favorable to the non-moving party. Id. The parties agree that there is no genuine issue of material fact to be resolved in this matter.

Petitioners represent police officers who are members of municipal pension funds in Pennsylvania. Respondents have responsibilities under the Act for promulgating necessary rules ...


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