*1 Wlien amount spouse suit recover the entire brings acceptance of an offer this is appropriated, and a de- rejection sever but rather is a the offer be restored mand that the estate the entireties ma- I agree state. with the original Consequently, to the entire fund. that the survivor is entitled jority concurring joins Mr. Chief Justice Bell opinion. Philadelphia, Appellant.
Dombrowski *2 Argued January 1968. Before Musmanno, Cohen, O’Brien JJ. Eagen, Roberts, City Deputy with First Solicitor, Levy Anderson, City him Allan H. Assistant Solicitor, Gordon, appellants. City for Edward Solicitor, Jr., G. Bauer, him W. 11. Stein- Henry Sawyer, III, Phillip appellee. for berg, curiae. A. amicus
Herbert Fogel, August Opinion 1968: Mr. Justice Roberts, employed appellee, L. Edwin Dombrowski, accounting Philadelphia general as chief Philadelphia’s *3 July, 1952 to 1966. Under June, municipal plan to retirement retirement he entitled is Alleging commencing August, in 1972. benefits requires Philadelphia’s §2-308 of Home Rule Charter system” pension “actuarially retirement sound and an city’s in and the contributions and that system on to maintain retirement were insufficient its an actuarially footing, instituted Dombrowski an sound compel appellants the to make to of mandamus action appropriations. necessary Judge complexity of the issues raised, the
Given Philadel of Common Pleas the Court Spaeth appointed specially hear de phia County Preliminary objections were litigation. termine opin testimony expert taken and extensive denied, appro found below that the prepared. court ion city by fact insufficient the were priations made actuarially system in an sound retirement the maintain Philadelphia to allocate to It ordered condition.1 upon expert testimony pro concluded, based Judge Spabth exports city (the two all material by appellee duced public that, system, for a retirement agreed), actuarial particulars retirement system $20,000,000 1967, $40,000,000 19682 and for each year after appel 1968 until all of lee’s retirement benefits have paid been an amount de termined tbe city’s actuaries sufficient to meet the system’s plus normal cost ac interest on its unfunded crued liability. appeal This into question only calls aspects two the litigation: (1) appellee’s institute a scope mandamus action and (2) the order entered. The appeal ques does not on tion the conclusion of the court below that annual contributions for 1967 and 1968 insufficient were meet the standard of required by actuarial soundness the Home Rule Charter.3 requires municipality a sum soundness contribute money year “normal for that each sufficient to cover the cost” year system’s liability.” plus interest on the “unfunded accrued annually Normal cost is that amount which be contributed must provide upon present city employees benefits retirement upon their based current and service. Unfunded accrued future liability required provide is the amount retirement benefits for employees system upon prior covered based their service year. unlikely municipality to the current will Since that a corporate typical (as private, to exist contrasted with cease system), retirement actuarial soundness demands system experts “partially be, testified, funded,” i.e., system year contributions to the each must plus system’s normal un- sufficient to cover cost on the liability. appropriations funded accrued Where are not suffi- amount, liability cient to meet this accrued until increases operate (a pay- forced to on a cash disbursement basis *4 as-you-go system), city’s expert agreed which even the actuarially contrary unsound and to the Charter. 2 order, part, required: appropriate “1. The Defendants shall System following Retirement the and allocate the amounts: System’s liability, (a) on the For unfunded 1967: accrued City’s being $20,937,412.50; (b) Sys For 1968: the share of the cost, being $19,057,000.00,plus Sys normal interest on tem’s liability, being $20,937,412.50; accrued tem’s unfunded . . .” 3 experts agreed that the fact both Given as to the content of requirement soundness, 1, of actuarial the Charter’s see footnote
supra, is understandable. this
203 Standing I. To Su® Sufficiency A. The of Interest DombrowsM’s dispositive question par- The on as this issue, correctly recognized, ties have is Dombrow- whether ski’s interest is sufficient to allow him to maintain mandamus action in name. contends Ids own §2-808 that in an action Charter to enforce of the Attorney Attorney of Phil- or the General District adelphia Appel- County requisite standing. has the position supported lan- lants insist their guage of of the Act June 8, Mandamus Act of 1893, disputes appellee L. P. 12 345, §1913; P.S. 1893, §3, point argues decided this if the cases that, further pursuant support appellants, Act do Mandamus promulga- impliedly by the these cases were overruled Pennsylvania tion one 1082, of Civil Procedure Sale governing mandamus actions.4 the roles 4 suspends January 1, 1947, 1457, Pa. R. C. P. effective procedure apply Act the rules of civil 1893 Mandamus insofar as specifically (c) practice procedure; that rule subsection procedure, pro suspends Act rules civil of 1893. Our §3 1982, §1, mulgated 21, 1937, as amend- under the Act P. L. of June ed, §61, a statute. Disci 17 have the force of See P.S. Schofield 675, ; Lojeski pline 209, (1949) Case, 201, Pa. A. 2d v. 679 Superior 410, Quirk, 198 A. 2d Ct. n.2, Mercy Johnstown, Hospital In Strank opined n.2 Court 102 A. 2d rules change “scope procedure In civil made of mandamus.” no dispositive facts, this statement of the Strank context pri- accorded to Rule broadened to whether question plaintiffs, confronting for the the Court vate jurisdiction trial court had to issue the writ whether upon hospital hospital against private based claim that give nurse, plaintiff, a student transfer credits for had refused completed. pos- held our courts did had We courses she hospital primate grant jurisdiction the credits. sess quoted language hi’oadly, would indicate that the rules Read modify standing requirements; however, procedure did not of civil
We are convinced that Rule 1092 has broadened private standing for the mandamus actions simple possible exception of reason with the that, Davidson v. Beaver Falls 348 Pa. 34 A. Council, 2d 505 our cases have charted a consistent area effective course this both before and after the date of 1092. Rule this consistent course, Nevertheless, demonstrates believe, that Dombrowski’s support brought in is sufficient to a mandamus action private capacity. his provides: writ Act “The
Section 3 of Mandamus
upon
may
application
any
issue
person
supplied.)
beneficially
(Emphasis
interested.”
Section
P. L.
P.S.
Act
June
345, §4,
8, 1893,
procure
sought
then
states: “When the writ
§1914,
public
proceedings
duty,
shall
enforcement
prosecuted
on
be
name of the commonwealth
attorney general:
of our
the relation of the
. . .”5 Two
prior
adoption
early
both decided
cases,
litigant
private
that
Mandamus Act of
tell us
public
may
action to enforce
maintain a mandamus
plaintiff
duty
and bene-
individual
has an
when
litigation independent
in the
ficial interest
large.
public
Commonwealth
which is held
(1876)
Snyder
82 Pa.
;
ex rel.
v.
Mitchell,
Heffner
The Loraine analysis
employed
in Common-
ex
wealth
rel.
Attorney General
Mathues,
relevant is whether inquiry at public an is not the sesses interest which shared A. (No. 100 In v. Lloyd 1), 474, Dorris large. Ct. 347 U.S. S. 2d cert. denied, Demo- the as chairman of (1954) county plaintiff, of the Board against cratic brought Party, Board that the alleging Elections of Luzerne County, duty public compel performance right act or or of force a from, [private] party interest distinct the has beneficial (Emphasis supplied.) general publAo . . .” that the . of Attorney Mathues, supra ex rel. Commonwealth General essentially public large “The at Atl. most at at 963: judiciary of in the maintenance of the as one . . . interested necessary independent government; and . . . and divisions of importance public question that the enforcement is one of such duty pay, authority law, public under of of the salaries of the depend willingness upon judiciary, should is one which private judge, capacity, attempt any en in his individual of private sup right (Emphasis of matter benefit.” as a his force plied.) required by the con-
liad
control
failed,
statute,
investigate
primary
duct
and to
election
elections
(id.
926) :
2d at
frauds. We stated
at
100 A.
passage
act
[mandamus]
“Even before the
public rights
uniformly
are
had
held
when
been
public
ordinarily,
only
may,
to he
officers
subserved
private
apply
individual can-
for the
and that
writ,
particular right or
he can show some
do so unless
independent
privilege
in com-
held
Ms own
large:
public
omitted].
[citations
mon
at
with the
passage of
have been numerous
Since the
the act there
holding
namely that,
authorities
the same effect,
pub-
duty
a statute is
where the
of an officer under
at-
lic
it can be enforced
at
suit
one,
proper
attorney
torney general
the district
or
specific
private
county
and
has a
or
citizen who
independent legal right
or interest
himself different
public
large or
at
who has suffered
special
peculiar
injury
[citations
to himself:
Against
(Emphasis supplied.)
these cases,
omitted.]”8
announcing
spanning
years
rule
one
hundred
plaintiff
private
inquiry
as-
that our
is whether
serting
from that of the
an interest “different
appellants pit
large,”
authority, Davidson v.
one
Having test for concluded that the correct possesses Dombrowski is whether Philadelphia’s sys- proper administration gen- with the tem from that which he shares distinct appellee public, if does have eral must determine appellee since The insists that, such an interest. until 1972, to retirement benefits will not be entitled requisite ar- We believe this he interest.11 lacks pres city’s clearly implies that, appellee if brief ap benefits, standing. ently drawing In view he would have right pellee’s contractual relation benefits and his vested these fully text, city (developed infra), ship immate plaintiff drawing private or is now benefits rial whether vested, benefits, will be received the future. now those whether gument ignores *10 to be unsound for it both the fact appellee’s his retirement benefits is vested having requirements fulfilled that, those pre-condition right his to receive these he has benefits, relationship city. entered into a contractual with the appellee’s right Of vested retirement course, his relationship and his contractual benefits, system and its retirement are does interests he public general in- share with the and which he holds dependent public. of the
longA
line of our decisions holds
when
that,
placed
employee
re-
has satisfied the
conditions
upon
system
right
tirement
his
to retirement benefits
dispute
appellee
(there
these
no
satisfied
is
has
e.g., years of
contribu-
continuous
conditions,
service,
right
system, etc.),
to retirement bene-
tions to
his
enjoyment thereof
fits becomes vested with
postponed. Harvey
Allegheny County
v.
Retirement
(1958)
Board,
;
141 A. 2d
201
contract with as this his upon bears is illustrated Edelman v. Sec- Boardman, retary A. 2d 393 Revenue, Edelman mandamus action own name brought his *11 to of Revenue to escheat certain Secretary property so that could collect his informer’s plaintiff fee. at (supra We held that Edelman had standing 2 A. at “It con- 396) 2d : is true that where the 91-92, imposed by tractual also obligation one which is it of be enforced not because may by mandamus, law, con- spite it; the contract but in of party acquires special tract a case an interest such pub- the general from that distinguished himself as pro- him to enabling bring lic, thus [mandamus] DombrowsM’s Similarly, name.” in his own ceeding from a stems the city with relationship contractual administra- and the creation i.e., by law, imposed duty con- party as and, system, of a retirement tion standing. has he tract, Davidson, exception possible
Finally, actions mandamus entertained consistently have enforce retirement aof a member by brought all members benefit would commands statutory Pennsylvania, Anderson, Vested [12] Temple L.Q. Rights in Public 259 Retirement Benefits of the system.13 Thus, Retirement Board Alle gheny County v. McGovern, supra at Atl. at 408, this Court noted: “While an employee may have an interest or vested right in the fund to protect insolvency, right cannot be worked out by refusing to but contribute, rather in an effort to com- pel the county a proper proceeding make good payments directed by or legislature, to re- other dress bad practices.” The “proper proceeding” to which McGovern referred is obviously mandamus the simple reason that McGovern was a mandamus ac- tion brought by private plaintiff compel the mu- funds nicipality appropriate which would benefit all members the retirement issuance system, Haldeman v. writ was affirmed. See also Hille 6 A. 2d at Ackerman v. 806; supra gass, Lycoming D. & C. 2d (C.P. Williamsport, Fund v. Minnaugh, Pension 1957) Firemen’s ; Cty. 1951). Dauphin (C.P. Cty. & C. Pa. D. Mc- dissent, as does argued,
It could This plaintiff. private a brought Govern the majority instituted action commis- county of one consisting board, elect- two persons controller treasurer, sioner, *12 board. of the minority a against system, the ed the or General Attorney the parties these of None are they county; appropriate the of attorney district i.e., relevant, here sense the only in plaintiffs private Attor- neither were in McGovern parties since bring could attorney, they district aor General ney if were they Act Mandamus under action tem ently which [13] to owing doWe mandamus compel the to not him. here was payment employed rely of upon benefits by even member which more numerous he aof alleged were retirement cases pres- sys- in
213 persons. beneficially interested evident It should he private plaintiff throughout that the term our is used encompass group plaintiffs decision to that of not Attorney appro- attorney or General district priate county. to hold that members Furthermore, inter- the retirement board have a sufficient beneficial bring est to mandamus while members persons insisting equivalent do not may having right those sue but a vested benefits having right such a cannot. recently ac a mandamus 1966 we entertained
As
payments.
compel
private
by
plaintiff
brought
tion
Taylor Abernathy,
222 A. 2d
ski abutting interests than special Co (1914) ; keep bring have been unty they previously this road in members no more note highway St. Lukacs, accorded David’s Church separate hours repair, have to have these offices had been standing. For county many when a sufficient Lank v. D. & other cases kept open, bar association have substantial v. county offices shall be C. 619 Sayen, Hughes, example, interest (C.P. 244 Pa. Bar than that of Dombrow private open 402 Pa. Association owners Mercer plaintiffs longer hours Cty. 1941) sufficiently kept property Atl. officials A. Mercer open 2d ; *13 B. The Immediacy Dombrowski’s Injury in- if appellee’s Alternatively, city argues that, terest is not suffi- is sufficiently distinct, injury his name.16 immediate action in his ciently to sustain an much suffi- has been is Although already what said cient to merit, demonstrate that contention lacks it does brief deserve treatment.
Dombrowski’s
footnote
supra,
see
complaint,
premised upon
belief that
contributions
his
the city’s
to its retirement
on
keep
fund were insufficient
an actuarially sound basis.
below
testimony
As
the present
past practices
placed
disclosed,
had
on
system
if
unsound basis
actuarially
and,
in-
unsoundness would
continued,
progressively
crease.
In
Dombrowski
essence, then,
attempting
himself
assure
and all other
of the Phila-
members
delphia municipal
sufficient
funds would be present
to meet his and others’ retire-
ment
payments.17 Part
his contract with the city
private individual, alleging
by
and a
that she has been mistreated
police,
standing
city mayor,
required by
has
stat
ute,
appoint
police
board,
Snyder,
members to
review
Brown v.
yor
City York,
Cty.
(C.P.
D. & C. 2d 286
York
Ma
1966).
immediacy
injury,
In terms of the
of Dombrowski’s
this suit
respects
taxpayer’s
taxpayer’s
inis
similar to a
some
action. The
justified
grounds
on
is often
that such an
action
necessary
illegal governmental
vehicle to deter
See
action.
Price
Philadelphia Parking Authority,
325-30,
221 A. 2d
(1966); Jaffe, Standing
143-45
To Secure Judicial Review:
Actions,
(1961) ;
Taxpayers’
Notes,
Public
74 Harv. L. Rev. 1265
Survey
Summary,
Suits: A
69 Yale L. J. 895
17Actuarial soundness also serves an additional
It
function.
generated by
city’s
the tax
insures
burden
contributions
to the fund
will be distributed
such manner that
tax
payers
employees.
are taxed for the benefits earned
Where
system operated
basis,
on a cash
disbursements
see footnote
taxpayers
supra,
pay
would be
taxed to
for benefits earned
past
employees
years;
typical
positing
furthermore,
in-
*14
promise
by
city,
Rule
Home
made
its
actuari-
that the retirement
would
Charter,
ally
finding
here
not
sound. The court below found,
promise.
city
kept
disputed,
Dom-
that the
had not
impairment
suffering
present
his
browski is thus
rights
injury.
contractual
and thus an immediate
appel-
Neither of
advanced
the two authorities
contrary
are
to
In Commonwealth
lants
this conclusion.
McLaughlin
County,
e
x rel.
v. Erie
brought
(1953)
The relies most v. Alle gheny County Retirement 231 A. Board, (1967). question Qeary 2d 743 called into the consti- permitted tutionality Allegheny of an act which Coun- policemen previous- ty age to retire at 55 instead of the ly established basis of this constitutional challenge age that the reduction in the retirement the actuarial decreased soundness of the retirement rights and under the fund vested therefore, con- municipality’s tract cases, contracts with em- impaired. unconstitutionally ployees were Without dis- municipal employees year in benefits, each crease the burden taxpayers placed currently being meet on future benefits earned previously earned) greater. (as as those would be even well cussing (supra 2d standing, 231 A. at stated 746) Harvey v. Alle- : fact Court “[T]he [in that the gheny County Board] Retirement concluded a fund was enhancement of the actuarial soundness prevent length- age or sufficient an increase eligible requirement yet employees of-service being . . . that a unconstitutional does not mean decrease actuarial sufficient soundness is itself deprivation rights im- or an constitute vested pairment bearing rights. in mind contractual Thus, presumption strong in favor of constitution- ality legislation *15 that [citation conclude omitted], legislative alteration of retirement whose ad- laws participants verse effect on ... theoreti- is to increase possibility payments cal not met them will sufficiently is not a concrete detriment to constitute sup- guarantees.” (Emphasis violation of constitutional plied.) Geary, distinguishable on its is on three face, separate grounds. protest- DombrowsM not First, is ing legislative pension system alteration of his but city plan rather a failure of it enact- follow the purposes, ed for these has and, never amended. Sec- nothing possible there is ond, theoretical or about Dom- browsky’s injury city’s court below found that the —the system actually presently retirement and unsound. insisting Dombrowski Third, is not that his constitu- right impairment prohibiting tional of contracts legislative change has been violated simply, but, city presently fulfilling that is not its contractual obligations.
Appellants lastly justification advance as for their appellee’s injury belief that sufficiently is not imme- Municipal System §116.1 diate of the Retirement Ordi- provides obligations nance pen- that the of the obligations sion fund shall be of the of Philadel- phia. Although provision the relevance of this is not sug- city immediately apparent, we assume are gesting benefits if retirement his that DombrowsM, judgment exe- city, and enter can sue the not received, ability do upon city property. his However, cute injury immedi- less in our not make his does view, so, obligations of the retirement for the fact that ate obligations city relieve system does are the of the ac- duty on to maintain its Its tuarially contractual sound It is Bombrowski’s basis. impaired city’s relationship city that with comply Charter and its own Home Rule failure impairment supports standing; that immediate his appellee through judgment might execu- be able pre- due him 1972 does not tion to obtain the funds present impairment asserting in him from 1968 a vent rights. of contractual properly suit conclude Dombrowski’s
We brought capacity his individual as a member of municipal Philadelphia system.18 Propriety the Writ II. Issuance Scope Pleadings Proof A. The *16 by city The next contends that the order issued beyond scope requested relief court below is improper. basis for it was The that, therefore, appellants’ argument was belief that the court this specific prayer in for contained to the relief confined appropriate appellee’s complaint, city that the suf- i.e., its normal for to meet cost 1966 and ficient funds 18 rely, case, upon we did in as one thus do the “exi We support plaintiff’s standing. Mayer gency” to the situation See D’Ortona, A. 2d 582 Pa. overruled on other v. Hemphill, Mayer grounds, A. 2d 444 1967.19 this the order Admittedly, entered goes beyond specific prayer to make sufficient by requiring city appropriations to place its retirement on system actuarially sound basis dictated the Charter —the city was ordered to for both make sufficient provision normal cost and interest on unfunded accrued liability. See footnote supra.
We must was begin that by noting city certainly not misled by Dombrowski’s it knew complaint; both concept actuarial embodying soundness normal cost and unfunded accrued is- liability sue. Not tes- prepared expert was the city on timony put this but complaint point, clearly matter complaint issue. Paragraph 9 of the pleads of the the section requiring §2-308 Charter, council to city adopt an actuarially sound system. Paragraph then “In 12(e) order alleges: pension system to be ‘actuarially sound,’ term is properly there should con- defined, tributed to the system each both year the ‘normal (i) cost’ (ii) equivalent amount the interest which would have been deposit earned aby equivalent the ‘unfunded actuarial liability’ System.” Finally, paragraph 30 adds:
“It is estimated that proposed amendments Municipal Retirement System Ordinance [amend- ments which were subsequently passed] will add least million to the ‘normal cost’ $8 of its Municipal Retirement System for the year mak- the total ‘normal ing cost’ said System ap- city also to our calls attention several made statements during appellee’s trial appellee’s counsel which indicate that primary appropriate desire was sufficient However, during normal colloquies funds cover its cost. these way careful to note that counsel was he no intimating power the trial court lacked to enter an differing order from the requested. specific relief
219
City’s
(In
proximately
addition
million.
$28.6
2318
No.
if Bill
for 1967 of
million,
‘normal cost’
$28.6
in-
equivalent
adopted
amount
[it was],
Sys-
liability’
‘unfunded actuarial
terest on the
which
than
million,
tem for 1967 is
less
$16.9
1967
require
contribution
minimum
would
Municipal Re-
million to make
than
less
$45.5
System ‘actuarially
that
term
sound’ as
tirement
sys-
pension
respect
properly
defined with
”)
tems.
powerless
city’s
court was
that the
contention
prayed
specifically
beyond the relief
to render an order
prayer
general
also
gives
for relief
for
no effect to the
grant
other
complaint,
such
“to
i.e.,
contained
appropriate
may
in the circumstances.”
relief as
general
court
prayer,
that
we believe
Given this
pleadings
shape
order to fit the
could
below
city obey
proof
requirement
and that its
proper.
command was
Charter’s
recognized
early
under
Court
as 1868 this
As
grant
may
equity
general prayer
court
for relief an
pleaded
“agreeable”
as is
the case
such relief
granted
proven
though
relief
differs
even
specific
Appeal,
prayed
Pa.
for. Slemmer’s
relief
repeatedly
(1868).
been
This doctrine has
e.g., Christian v.
Police
Johnstown
reaffirmed. See,
A.
421 Pa.
Association,
Pension Fund
240, 245-46,
(1966);
Meth v.
Meth,
2d
749-50
(1949).
have stressed
A. 2d 848
Furthermore,
similarity
equity proceedings
many
between
cases
performed
pleas
by a common
court
function
and the
example,
a mandamus action.20 For
it entertains
when
sprinkled
profusely
are
cases
statements
Our
application
a writ of mandamus is addressed to the
sound dis-
bespeak equitable
court,
statements
doctrine.
cretion of
Samuel,
See, e.g.,
equity grant spe- differing court to relief from that cifically requested complaint when the also contains general prayer similarity princi- and the between the ples operative equity applying and those in man- why damus—we fail to see should mandamus court possess power grant not also relief differs which specifically requested. from that To hold otherwise, as the court below would be noted, to insist may grant mandamus court not the relief that proof pleadings, require.21 and the equita- law Since principles ble control the issuance of the writ of man- equitable principles we believe that equally damus, al- trial low the court to enter an order differs specific requested. relief 21Appellants equity insist that an action is not a mandamus equity action and considering therefore the general prayer cases agree for relief issue are not relevant. equity While we that an action action, identical to a identity mandamus this lack of aspects does not mean that on certain principles the same should apply. Furthermore, text, infra, as discussed in appellants rely support argument of another on cases which stress equitable action; city nature simply cannot ways. have it both Scope Writ
B. Tlie
part,
argument
city’s
at least
final
which,
steps beyond the
entered
merit is that the order
has
In
mandamus.
office of the
traditional
writ
upon
cases
aspect
litigation,
relies
first
(1952)
87 A. 2d
22 A
that it was not
to meet Charter
of
demands
actuarial soundness has little to recommend it. In No
vember, 1952, April, 1958,
January, 1961,
June,
in
in
in
and
city’s
again March,
(in reports
in
1966 the
actuaries
included
record)
warned the
that it
paying
should at least be
liability
on
unfunded accrued
liability
so that this
will
presently
(as
is)
grow.
it
reports
continue to
Some of these
suggestion
liability
an additional
contain
the accrued
itself be
period
years.
decreased
amortization over a
present taxpayers
too
to be taxed
will have
rassment,
help
severely,
may
then
with the
defendants
devise,
achieving
program
actuary,
their
reasonable
present
gradually, and hence without undue burden on
may
taxpayers, what must be achieved. Defendants
apply
permission
comply
then
the Court for
graduated
Court’s order
accordance with such
program.”23
balance
Under the
circumstances,
by Judge
proper.
drawn
seems
Spaeth
city’s argument
The second branch of the
centers
language
(No. 1),
Lloyd
about
contained Dorris v.
375 Pa.
There is no that the first of the order, covering scope power; is within the court’s contrary nor can there be, notwith- dispute standing, as to the 1968 section of order. requires Home Section 2-300 of the Rule Charter always Our cases have not been consistent with the views expressed example, Pittsburg, For Dorris. in Loraine v. Johns town, Ebensburg Company, & Eastern Railroad 54 Atl. requiring we affirmed an order essence a common carry plaintiff’s goods. Holding carrier in futuro to order broad, (id. 137-38, 582) was not too below we insisted 54 Atl. at : way framing compelling can no obstacle in the “We see a writ performance duty (to carry defendant’s continuance of that plaintiff’s goods] ample power and the court below has enforce against defendant commands and its see officers should obeyed.” to it that are its orders *21 fiscal year at least 30 before the end days city’s must council (in 1967) December case, city annual for the adopt ordinance operating budget for coming provide fiscal This must dis- year. budget ordi- deficit. if the charge any city’s budget Thus, for appro- nance fiscal 1968 did not contain sufficient priations the court normal (as found) below to cover has cost and interest on unfunded accrued liability, breached its to 1968 the order already duty as the court performance below does not future act. for has
However, years subsequent to 1968 the city made yet its financial section decisions; third of the order below thus contains a directive for performance of a future act dictates violation of Dorris. be- Although can with the court agree if low that, city fails to make appropria- sufficient subsequent tions or- years 1968 and the court’s der for subsequent years then vacated, subsequent annual perhaps neces- mandamus actions will be to compel sary performance of the we cer- city’s duty, cannot assume that tainly of its now aware city, obligations, will refuse to act accordingly.25 Thus, third section of the order of the court below must vacated.
The order of the Court of Common of Phila- Pleas delphia County, modified, is affirmed. Eagen
Mr. Justice concurs the result. Mr. Chief Justice and Mr. Justice took Bell Jones part no the consideration or decision of this case. further assume that AVe the court below will still entertain plan city, submitted wishes, enable the if it so comply gradual with the first two sections of the court’s order on a basis. *22 by Opinion
Dissenting
Mr.
Cohen:
Justice
inaccurately
lawyers
state
When
before this Court
perform
holdings
they
of
disservice to
cited cases
a
litigants
judge misinter-
and. the
but
a
when
Court,
prets appellate
performs
court
he
a disservice
decisions
only
litigants
to
and the
but
addition,
Court,
importantly
ma-
the Bar and more
to the law. The
opinion
jority
upon
writer
of Retire-
relies
case
Allegheny County
ment Board
McGovern,
support
proposition
Although body the Board is a clothed with public majority duties nature, still insists private plaintiff it and as such McGovern maintain right to Dombrowski’s weight lends under reasons majority action. The mandamus district or a attorney general Act the the Mandamus the only are appropriate county attorney actions officials who institute may “bene- considered Board unless hence the Retirement requisite also lack the person” would ficially interested ma- standing. Therefore, to have necessary in Mc- if the Board had concludes jority per- interested “beneficially because Govern then benefits, right vested having son” without *23 view in the majority’s who has certainly Dombrowski “benefi- as a standing would also have right a vested person.” interested cially of June
A of the Mandamus Act reading majority will reveal the P. L. P.S. §1914, from a fallacious position is arguing substantiate of the interpretation assumption due to an incorrect an ac- Board can only bring a Retirement i.e., statute, interested if it a “beneficially tion mandamus were public under of the since the only person” Act, §1913 be can commence such an action would officials who ap- or a of the attorney general attorney the district the “When provides: Section 1914 propriate county. public of procure the enforcement a sought writ is name prosecuted the shall be the proceedings duty, attorney of the on the relation of the Commonwealth That Provided said general: however, proceeding, be on the relation of the at- proper cases, shall district proper of the Provided That torney county: further, sought said proceeding duty when enforce af- it interest particular public fecting state, of be on the relation entrusted with shall of officer such . . .” interest. management (Emphasis sup- plied). seeking proceeding in a clear that seems
The statute public particular affecting duty to enforce the relation on commenced it be of the shall state, management in- such entrusted with officer Philadelphia Board of the Retirement terest. Here management retire- County of the is entrusted with suggest foolhardy be and it would ment language §1914 unqualified under would there are several of mandamus. Thus, an action file majority apparently of, unaware cases which proviso dealing import construe the other officials mandamus actions commenced attorney of attorney general or district than appropriate county. La- In ex rel. Commonwealth Snyder, 104 Atl. fean upheld com- commenced an action mandamus general banking against the auditor missioner approve pay the them to state treasurer argued requisition salary him. The due defendants banking that the commissioner lacked under proceeding bring §1914of the Act to such a Mandamus proper plaintiff party Com- and that the was the attorney general. re- on relation of the In monwealth jecting permitting banking this contention and com- *24 the under the missioner maintain mandamus action proviso of “. we stated: . . There can be no doubt §1914, pub- present proceeding brought that the is to enforce a public duty affecting one lic and also a name- interest, department ly, banking of the the and Commonwealth, brought properly in therefore is the name of Com- the of on the relation the bank- monwealth commissioner of private ing. the relator has in While also interest yet payment salary, compensation, of the his as his expenses payment of other of his office, well necessary incident administration of af- paid department, being public and of out of fairs public funds is matter of consequently, concern, of duty having payment officials such charge a public duty. . . .” Powell,
The case of Commonwealth ex rel. Bell v. light 94 Atl. additional (1915), sheds on proper interpretation Powell section. concerned an action of the at- mandamus instituted by torney general seeking general the auditor his in upon draw warrant favor the state treasurer, specified the National Limestone as was Company, in requisition of the state commissioner. highway question first in at- raised Powell was whether torney relator general proper person to act as in the com- proceedings or should the action have been menced on the relation of commis- the state highway sioner. We held that prop- attorney general was er not party plaintiff but proper plaintiff the exclusion of other public in namely, officials, the state other Powell, highway In commissioner. recognized words, an official entrusted the management particular of a state would interest have standing to institute a addi- action tion to and to the exclusion the attorney gen- eral or the district attorney the appropriate county. Cf. Stegmaier Jones, 203 Pa. 52 Atl.
Consequently, the Retirement Board Allegheny County predicated McGovern was up- on (as a public officer) not because the §1914 Board was “beneficially interested person” under should It also seem obvious §1913. the Board McGovern was a “beneficially interested person” in the sense that all the cases heretofore i.e., suggest, it had no or pecuniary financial personal other than its enforcing statutory duties responsibilities The Board public. acting its public ca- attempt in an pacity discharge functions *25 logic or imagination, by no of the reason, and stretch majority categorized, authority as the can it be case private plaintiff. aas does, 13) opinion majority indi- (footnote further upon relying cases the numerous that not
cates by member instituted a mandamus action was which compel payment system benefits to of a retirement Despite owing allegedly due to Mm. were single decision I find a am at a to this loss disclaimer, opinion majority man- cited which involved retirement commenced member damus action presently system under who not due benefits system. In Falls Council, Davidson Beaver position 34 A. 2d Court took the our yet eligible Davidson not benefits that allegation system there was no the retirement since any owing him. that funds were then due and will the Court concluded mandamus Therefore, presently party seeking relief not issue unless the Contrary seeking he is to create. entitled the funds exception opinion, majority to the Davidson is an ex- without but rather has been the rule rule, respect ception years Commonwealth for exception If actions. Davidson is long suggesting why does line of cases otherwise, majority opinion glaringly author- fail to cite one permitted ity which has a mandamus action when member retirement did individual moneys allege presently were due certain owing? prin- supports
Every majority case cited ciple sys- of a that an individual member retirement requisite institute an action tem lacks point specific pres- he can unless some of mandamus injury if him would which, demonstrated, entitle ent form to relief time certain benefits system. under *26 attempt chronological briefly,
I to in will outline every the factual case situations retirement order, purpose demonstrating by majority of cited for the allegation that in com- each case there an in the was plaint sys- plaintiff, that the member of the retirement attempting to was to the defendant tem, mandamus compel payment pension presently of a he which was Hillegass, to In entitled receive. Pa. Haldeman v. (1939), A. 2d ac- Haldeman an 375, commenced County compel Montgomery tion of beneficiary- recognise Retirement Board to him as a system. member of the in- retirement This action was stituted after number of on the demands made were plaintiff Board and after the had filed a written application question. to be retired under the Act Simply plaintiff alleging pres- stated, was that he was entitled, ently pension being unlawfully which by withheld the Retirement Board. Baker v. Retire Allegheny County, ment Board 97 A. (1953), following picture: 2d 231 involved the factual having years Baker after terminated 20 Department as a service member of the Police of the applied Pittsburgh, to the Police Fund Pension pension payments. Association for certain He was pension began receiving awarded benefits January as of 1929. On October Baker be- 1, 1928, employee County came Allegheny an employment continued until June he when 30, 1952, applied county He retired. then for retirement application allowance but his was denied. Thereafter, against an amicable action of mandamus was instituted compel payment Board to Retirement of bene- system alleged fits under the retirement which Baker presently owing due and were to him. Suffice it to just say, this is another case majority cited parallel which cannot said involve a situation ease. the instant Hickey Pittsburgh Board, Pension v.
Likewise,
man-
A.
2d 233
an action
aof
instituted
member
damus was
an individual
pay
Board to
the Pension
plain-
pension
according
him
installments which,
complaint,
obtained
tiff’s
discontinued when he
were
employment
Again
County
Allegheny.
with the
plaintiff
allegation
seeking
there
man-
that the
if
un-
be entitled to
would
damus,
successful,
benefits
system.
Harvey Allegheny County
der the
Re
See
*27
(1958),
tirement
392 Pa.
Rose District, Department of Public Instruction.