Opinion
Argued December 6, 1983
March 7, 1984.
Argued December 6, 1983, before President Judge CRUMLISH, JR. and Judges ROGERS, WILLIAMS, JR., CRAIG, MacPHAIL, DOYLE and BARRY.
Original jurisdiction, No. 2218 C.D. 1983 and 2407 C.D. 1983, in the cases of The Pennsylvania Federation of Teachers, et al. v. The School District of Philadelphia, et al. and Pennsylvania State Education Association, et al. v. Commonwealth of Pennsylvania, The Honorable Richard Thornburgh, et al. Petitions in the Commonwealth Court of Pennsylvania challenging the constitutionality of certain legislation. Cross-motions for summary judgment filed. Held: Summary judgment awarded petitioners.
Elliot A. Strokoff, with him, Jerome H. Gerber, Handler, Gerber, Johnston, Strokoff Cowden, for petitioners, The Pennsylvania Federation of Teachers et al.
Anthony D. Newman, with him Lynne L. Wilson, for petitioners, Pennsylvania State Education Association et al.
James J. Kutz, Deputy Attorney General, with him Allen C. Warshaw, Deputy Attorney General, and LeRoy S. Zimmerman, Attorney General, for respondents.
Richard Kirschner, with him, Stuart W. Davidson, Kirschner, Walters, Willig, Weinberg Dempsey, for Amicus Curiae, Council 13, American Federation of State, County and Municipal Employees, AFL-CIO.
The petitioners and respondents in these two consolidated cases have filed cross-motions for summary judgment. Petitioners seek a permanent injunction of Section 2 of Act 31 of 1983, 24 Pa. C. S. § 8102, which requires them, as members of the Public School Employes' Retirement System to contribute an additional 1% of their salary to the Public School Employes' Retirement Fund. Section 2 of Act 31, signed into law by Governor Thornburgh on July 22, 1983, purported to raise the basic contribution rate under the Public School Employes' Retirement Code from 5 1/4% to 6 1/4%. Respondents seek to have Section 2 of Act 31 constitutionally upheld. We grant petitioners' motion for summary judgment and deny respondents' motion for summary judgment for the reasons set forth in AFSCME v. Commonwealth, 80 Pa. Commw. 611, 472 A.2d 746 (1984). We also order the Commonwealth to refund immediately all employee contributions in excess of the 5 1/4% basic contribution rate heretofore collected.
Petitioners have discontinued their action with respect to the School Districts of Philadelphia, Pittsburgh and Scranton.
Petitioners in this case were all members of the Public School Employes' Retirement System at the time of the enactment of Act 31.
The pertinent part of Section 2 reads as follows:
"Basic contribution rate." The rate of [5 1/4% except for an active member of Class T-A or T-B, the appropriate rate based on sex and age at entry into the system] 6 1/4%.
The Commonwealth is also ordered to return any accrued interest at the rate of four (4%) percent as set in Section 8102 of the Public School Employes' Retirement Code, 24 Pa. C. S. § 8102.
ORDER
Upon consideration of the cross-motions for summary judgment of petitioners and respondents, the petitioners' motion for summary judgment is granted and the respondents' motion for summary judgment is denied. Further, IT IS ORDERED that:
(1) Respondents, jointly and severally, together with their agents and representatives, are hereby permanently enjoined from collecting pension contributions from employees who were members of the Public School Employes' Retirement System prior to the enactment of Act 31 of 1983, in excess of the five and one-quarter (5 1/4%) percent basic contribution rate; and
(2) Respondents, jointly and severally, together with their agents and representatives, are hereby directed to return, immediately, all monies collected from employees who were members of the Public School Employes' Retirement System prior to the enactment of Act 31 of 1983, in excess of the five and one-quarter (5 1/4%) percent basic contribution rate, and to return any accrued interest from all monies collected at the rate of four (4%) percent as set forth in Section 8102 of the Public School Employe' Retirement Code, 24 Pa. C. S. § 8102.