Hunsicker v. Com. State Employees Retirement Bd.

• Decision Date: 23 February 1977
• Citation: 28 Pa.Cmwlth. 596,370 A.2d 397
• Court: Pennsylvania Commonwealth Court
• Parties: Charles HUNSICKER, Jr., Appellant v. COMMONWEALTH of Pennsylvania, STATE EMPLOYEES' RETIREMENT BOARD.

Page 397

370 A.2d 397

28 Pa.Cmwlth. 596

Charles HUNSICKER, Jr., Appellant v. COMMONWEALTH of Pennsylvania, STATE EMPLOYEES' RETIREMENT BOARD.

Commonwealth Court of Pennsylvania.

Argued Dec. 9, 1976.

Decided Feb. 23, 1977.

[28 Pa.Cmwlth. 597] Harold R. Prowell, Harrisburg, for appellant.

Raymond Kleiman, Deputy Atty. Gen., Dept. of Justice, Harrisburg, for appellee.

Before CRUMLISH, Jr., MENCER and BLATT, JJ.

OPINION

CRUMLISH, Jr., Judge.

Charles Hunsicker, Jr. (Appellant) has appealed an order of the State Employes' Retirement Board (Board) denying his request for the military service credit provided by Section 207(1) of the State Employes' Retirement Code of 1959 (Code) ¹.

In February, 1941, Appellant began his state employment. In July, 1942, he was ordered to active duty with the Navy. He was placed on military leave of absence without pay in August, 1942, but continued to make his contributions to the State Employes' Retirement Fund (Fund) until October, 1943, at which time he resigned from Commonwealth service and withdrew his pension contributions.

Appellant's tour of active duty terminated in June, 1947, but he voluntarily remained in the Navy until July, 1963 when he returned to state employment. Appellant then resumed contributions to the Fund.

In March, 1966, Appellant reached the superannuation retirement age of 60 years. One month prior to reaching retirement age, Appellant had petitioned for military service credit and tendered a check for the amount of accumulated salary deductions for the period between October, 1943 and June, 1947 (the period in which he was on active duty during wartime but was making no contributions).

The Board denied Appellant's request for purchase of military service credit. Hence, this appeal.

Section 207(1) of the former Code states:

'(1) A State employe who during the period from September 16, 1940, to July 27, 1953, entered into active military service, defined as full time service in the armed forces of the United States, under a requisition from or by executive order of the President of the United States, or in the armed forces organized for the defense of the Commonwealth by the authority of this Commonwealth, shall be allowed credit for the period during which he was in active military service and salary deductions were paid into the fund either during such active military service or thereafter in accordance with the provisions of article III, sections 301 and 302.'

The Board concluded that it would be contrary to public policy and the spirit of Section 207(1) to permit Appellant to purchase his military service credit when he is also receiving a federal disability pension. The Board also concluded that Appellant's choice to remain in the Navy until 1963 constituted an abandonment of his rights to benefits during the period of his entire military career, including the active wartime service period. We hold that the Board's conclusions are erroneous as a matter of law.

Initially, we note that Appellant is not, as the Board suggests, seeking credit within the state employment system for his voluntarily extended service time with the Navy. Cf. State Employes' Retirement Board v. O'Brien, 93 Dauph. 101, 50 Pa.D. & C.2d 750 (1970).

Section 302(2) of the former Code defines the categories of employes who are entitled to make back contributions on account of past service for which they were given credit. Subsection 302(2)(i) defines the category of employes into which Appellant falls--state employes who entered active military service between September 16, 1940 and July 27,...