Pueblo Regional Planning Commission v. Spytek

• Decision Date: 16 September 1975
• Docket Number: No. 75--078,75--078
• Citation: 542 P.2d 88,36 Colo.App. 406
• Parties: PUEBLO REGIONAL PLANNING COMMISSION, a Division of the Pueblo Area Council of Governments, Plaintiff-Appellee, v. Roman H. SPYTEK, Defendant, Public Employees' Retirement Association of Colorado, Garnishee-Appellant. . II
• Court: Colorado Court of Appeals

Page 88

542 P.2d 88

36 Colo.App. 406

PUEBLO REGIONAL PLANNING COMMISSION, a Division of the Pueblo Area Council of Governments, Plaintiff-Appellee, v. Roman H. SPYTEK, Defendant Public Employees' Retirement Association of Colorado Garnishee-Appellant.

No. 75--078.

Colorado Court of Appeals, Div. II.

Sept. 16, 1975.

Rehearing Denied Oct. 9, 1975.

Certiorari Denied Nov. 24, 1975.

Alan N. Jensen, Pueblo, for plaintiff-appellee.

J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Charles A. Kelley, Mary A. Rashman, Asst. Attys. Gen., Denver, for garnishee-appellant.

SILVERSTEIN, Chief Judge.

From a judgment entered in favor of the Pueblo Regional Planning Commission (Commission) on its writ of garnishment issued to the Public Employees' Retirement Association, the PERA appeals. We reverse.

Defendant Spytek had been an employee of the Commission and, as such, was a member of PERA. He was terminated by the Commission on January 23, 1974. At that time Spytek owed the Commission $1,000, which the Commission sued to recover. The writ of garnishment was issued as a corollary to that action.

On February 13, 1974, Spytek demanded payment from PERA of the full amount of the accumulated deductions standing to his credit on the date of his termination. This demand was timely under the provisions of § 24--51--109, C.R.S.1973. On March 19, 1974, PERA was served with the writ of garnishment. Pera Answered the writ on March 22, 1974, stating that it was not indebted to the defendant, but that it did have in its possession, or under its control, funds of the defendant; however, citing what is now § 24--51--219, C.R.S.1973, it asserted that such funds were not 'subject to process.' The funds so held totaled $1,210.02. On May 15, 1974, a check in that amount was mailed to Spytek, who cashed it on receipt.

Section 24--51--219, C.R.S.1973, provides:

'Funds not subject to process-taxation. None of the moneys, annuities, or other benefits mentioned in this Part 2 shall be assignable either in law or in equity or be subject to execution, levy, attachment, garnishment, or other legal process, and they shall be exempt from any state income tax.'

The Commission contends that the above statute is inapplicable to the facts of this case because Spytek was no longer a member of PERA and, therefore, only a creditor-debtor relationship existed between him and PERA. In its judgment the trial court held that, 'as the Defendant had terminated his employment and had requested a refund of his PERA account, said funds were, therefore, not exempt from attachment.'

In accordance with § 24--51--215, C.R.S.1973, Spytek's right to a refund arises under § 24--51--109, C.R.S.1973, which provides:

'Whenever any member of the retirement association ceases to be an employee for any reason other then death or retirement, he shall be paid within ninety days subsequent to the certified date of termination of such employment, upon notice in...