dissenting.
Respectfully, I must dissent. The majority has, in my opinion, erred in failing to apply offensive collateral estoppel in this action. City of Covington v. Peare, Ky.App., 769 S.W.2d 761 (1989), originated in the Kenton Circuit Court in 1987 when two firefighters sought a declaratory judgment against the City of Covington (hereinafter “City”) and the Board of Trustees of the Policemen’s and Firefighters’ Retirement Fund (hereinafter “Board”). The relief sought in Peare was precisely the relief sought by the firefighters and policemen in this action: inclusion of terminal leave pay as salary in the calculation of retirement benefits. The circuit court entered a judgment against the City in favor of the firefighters. The City appealed, presenting the same issues that are before us now.
The Court of Appeals reversed on the issue of finality, finding that the judgment of the trial court was not final as against the Board, which is the entity with authority to administer the retirement fund. Id. at 764. The circuit court was directed to enter an identical judgment in favor of the firefighters against the Board. Id.
Judgment was entered in the trial court and no appeal was taken by either the City or the Board. Therefore, collateral estoppel applies. City of Louisville v. Prof. Firefighters, Ky., 813 S.W.2d 804, 807 (1991).
I cannot agree that the effects of the holding in Peare could not have been anticipated. The record herein contains the minutes of the Board’s meetings subsequent to the rendition of that opinion which reveal that the question of the decision’s applicability to other pension recipients was discussed. Specifically discussed was the “number of persons impacted if the benefit were extended to all retirees.” Thus, the fact that the stakes are high was clear to the Board in 1992.
The majority also cites as a reason not to apply collateral estoppel the fact that the retirees are represented on the Board by fellow officers of Peare and Vastine, thus implying that notice of the litigation was available to all retirees, who could then have joined the first lawsuit. Appellees point out that retiree representatives sit on the Board pursuant to KRS 95.869, which became effective more than a year after the first Peare decision. While it is true the present appel-lees could have joined the earlier action, they also could have been interpleaded by the City.
The fact that the City perhaps contemplated joining the county retirement system is irrelevant to whether the City was aware of, or anticipated, the effect of the Peare decision. If anything, such an action decreased the viability of the pension fund at issue here and its ability to meet the increased obligations that the Peare decision placed on the fund.
The majority speaks of justice and fairness in allowing the City to prevail today. In my view, justice and fairness require that all retirees who fit within the parameters of the original Peare decision receive the benefit of it.
REYNOLDS, J., joins this dissenting opinion.