3 A.2d 1016 | Pa. Super. Ct. | 1938
KELLER, P.J., dissented.
Argued October 13, 1938. Maud O. Abrahams, administratrix of the estate of Woodward Abrahams, deceased, filed a bill in equity against the Pension Board of the city of Philadelphia to obtain an accounting and payment of the total contributions made by the plaintiff's decedent to the pension fund of the city of Philadelphia.
The bill alleged that the deceased for more than twenty years had worked for the city of Philadelphia and that for eighteen years prior to his death on July 12, 1937, he was in the employ of the Bureau of Weights and Measures, a department under the control of the Board of County Commissioners of Philadelphia; that he had made contributions, in sums unknown to the plaintiff, to a fund created by appropriation by the city and deduction from the pay of city employees, and that upon his death, by virtue of section 1 of the Act of July 5, 1917, P.L. 689 (53 P. S. § 3513), there became due and payable to the estate the sums deducted from his salary and paid into this fund. Upon application of the city *300 of Philadelphia, it was permitted to intervene as a party defendant.
The defendants in their answers averred that amounts, totalling $825.50, were regularly deducted from Abraham's salary, which were retained by the Pension Board of the city of Philadelphia. In the new matter set up by defendants, it was alleged that Abrahams had collected, between January 1, 1937, and July 9, 1937, license fees from vendors of solid fuel under an ordinance of council, approved December 19, 1934, and that there was a shortage in his accounts at the time of his death in the sum of $3,088, which is a proper set-off to any monies alleged to be due plaintiff.
The case came on to be heard before Judge HEILIGMAN, who filed an adjudication, wherein he found that the deceased had misappropriated to his own use the sum of $3,088. He held that the pension board was an administrative agency of the city of Philadelphia, charged with the duty of collecting and distributing the pension fund, and that contributions made thereto by employees, together with the appropriation made by the city council, amounting to $4,480,000, constituted a single fund impressed with a trust to carry out the specific purposes for which the fund was created; and that the defalcations of the decedent cannot be deducted from the amount he contributed. Accordingly, an order was made, directing the pension board to pay over to plaintiff the sum of $825.50. Exceptions to this decree were dismissed, and thereupon separate appeals were taken by the pension board and the city of Philadelphia, which were heard together and will be disposed of in this opinion.
The appellants' first position is that Abrahams could not have recovered in this action until he had made full reparation of the sum embezzled and that his administratrix does not stand on higher ground (Williams' Admrx. v. Williams,
In Chester County Trust Co. v. Pugh,
This record does not disclose whether or not there are creditors of the estate of the decedent; no reference whatever is made to that subject. If there are creditors, and we cannot assume otherwise, the administratrix can institute an action to protect them. The jurisdiction to determine the status of creditors and their rights to participate in the distribution of the deceased's estate rests exclusively in the orphans' court(Strouse v. Lawrence, Admrx.,
The foregoing discussion may not be very pertinent as plaintiff does not rely upon her right to recover by virtue of the Intestate Law, but rests her claim under a statutory right given by section 5 of the Act of May 20, 1915, P.L. 566, as amended by section 3 of the Act of July 5, 1917, P.L. 689 (53 P. S. § 3515), which provides: "In the event of the death of any employe before the said employe becomes entitled to the pension aforesaid, the said total amount of contributions aforesaid shall be paid over to the estate of said deceased employe." It is thus apparent that unless some valid *302 reason is advanced, plaintiff is entitled to the amount awarded her.
That brings us to the second proposition raised by the appellants, viz., that as the decedent was indebted to the city of Philadelphia in the amount he embezzled while in its employ, plaintiff cannot recover any amount from the fund in question; in other words, that there is the right in the defendants to an equitable set-off.
It is conceded that in certain circumstances a set-off, which is an affirmative defense (Security T. T. Co. et al. v. Welsh Brown,
It clearly appears that the money the plaintiff is seeking to recover is no part of the fuel license fees misappropriated by the decedent. No attempt was made to trace them into the hands of the pension board. "While a liberal construction is given to the Act of 1705 allowing set-off and defalcation of a debt of a proper character, yet, as a general rule, the debt must be due in the same right. It is inadmissible when the plaintiff's cause of action is for a breach of contract to fulfill an official, or a fiduciary obligation. Although the debt may be between the same parties, yet it is not due in the same right within the true meaning of the statute. Hence the treasurer off a corporation, when sued for money in his hands as treasurer, cannot set off a debt due him from the corporation: Russell v. Church, 15 P.F. [65 Pa.] *303
Smith 9. So in an action by a collector of school taxes, for taxes assessed on the defendant, the latter cannot set off a debt due him from the board of school directors: McCracken v. Elder,
10 Casey [34 Pa.] 239": Tagg, to use v. Bowman,
The status of the appellant city is merely that of a general creditor. On the other hand, the right of the plaintiff is given under statutory provisions. Whenever the right of a party is established by law, equity has not power to change that right. In all such instances, the maxim "equitas sequitur legem" is strictly applicable: Scott et al. v. Waynesburg Brewing Co.,
Furthermore, there is section 12 of the Act of 1915, supra (53 P. S. § 3522), which reads as follows: "The compensation or pension herein mentioned shall not be subject to attachment or execution, and shall be payable only to the beneficiary designated in this act, and shall not be subject to assignment or transfer." It is very obvious that it was the legislative intent that payments made by certain employees to this fund should be beyond the reach of creditors and that payment therefrom should be made only to those designated by the statute, which, by section 5 of the Act of 1915, supra (53 P. S. § 3515), is to the estate of the deceased employee. This statute, like those relating to the rights of beneficiaries in insurance policies, should be liberally construed. *304
Compare Irving Bank v. Alexander et al.,
As the plaintiff's right is established by statute, the alleged equitable set-off cannot be enforced.
The last position taken by the city is that it claims title to the funds contributed to the pension board as public funds and until a sum is actually appropriated to the plaintiff beneficiary, no vested right resides in her.
The view adopted by the learned chancellor in support of his decree is that this fund is the corpus of a trust for the sole purpose of providing retirement pay to the employees or their estates, and, as trustee, the city cannot set off its own claim against the claim of one entitled to a sum for contributions made by the intestate to the board.
Mr. Justice KEPHART, in the case of Retirement Board v.McGovern et al.,
The appellants cite cases from foreign jurisdictions, includingDodge v. Board of Education,
A careful consideration of the record and able arguments of the respective counsel brings us to the conclusion that the court below made a correct disposition of this case.
Decree is affirmed, at appellants' costs.
KELLER, P.J., dissents.