430 Pa. 66 | Pa. Super. Ct. | 1968
Lead Opinion
Opinion by
Foreign fire insurance companies in Pennsylvania are assessed a tax of two percent on premiums collected by them in this Commonwealth. Under the Act of June 28, 1895, P. L. 408, §2, as amended, 72 P.S. §2262, there must be paid annually to the treasurers of the various municipal subdivisions in Pennsylvania a portion of this tax money corresponding to the amount of foreign fire insurance written in the receiving municipality. This same Act of 1895 further requires the recipient municipality to pay over the amount received to the designated firemen’s relief or pension fund which serves the specific area. The City of Washington and the Township of Canton, having designated the Firemen’s Relief Association of Washington as the authorized recipient of its share of tax money, have been collecting funds from the state and disbursing them to the Association since 1931.
By letter of January 12, 1965 the Auditor General informed the Association that payments under the Act of 1895 would thereafter be suspended. According to this letter, the Auditor General concluded that certain by-laws of the Association rendered its pension plan invalid for purposes of receiving said funds.
Appellants maintain that the Act of 1895 does not authorize the payment of moneys to any pension plan which fails to establish a minimum age for receiving benefits. They further contend that the Legislature did not intend to bestow Commonwealth funds upon any pension association which would use this money to provide medical and/or death benefits for its members. We are unable, however, to find any such limitations in the language of the Act of 1895, and thus agree with the court below that mandamus properly issued.
The Act of 1895 provides, in relevant part, as follows: “On and after the first day of January, one thousand nine hundred and nineteen, and annually thereafter, there shall he paid hy the State Treasurer to the treasurers ... [of the municipalities of this Commonwealth], the entire net amount received from the two per centum tax paid upon premiums by foreign insurance companies. . . . Each . . . [municipality]' receiving any payment from the State Treasurer hereunder, shall forthwith pay the amount received to the relief fund association of, or the pension fund covering the employes of the fire department . . . [of such municipality].” (Emphasis supplied.)
It is readily apparent that, in the present case, the Auditor General has unilaterally decided that the only pension funds eligible for money under this statute are those which do not provide medical and death payments and which condition their benefits upon a minimum age. Since the statutory language quoted above fails to so limit the words “pension fund,” we have, pure and simple, this classic problem of administrative law: To what extent may an administrative body or officer, under the guise of its regulatory power, actual
Just recently this Court, in litigation involving the Firemen’s Relief Association of Reading, set out the limitations on the Auditor General’s power under the Act of 1895. The Auditor General sought to withhold funds from the Firemen’s Relief Association of Reading on the ground that this association planned to use part of the money for certain death benefits that would not be available equally to all members of the association. This, said the Auditor General, was not permitted under the Act of 1895. The controversy first reached our Court on the issue of whether mandamus was the proper remedy to compel payment of the funds to Reading. Volunteer Firemen’s Relief Association v. Minehart, 415 Pa. 305, 203 A. 2d 476 (1964). It was there held that mandamus would lie. The Court read the Act of 1895 as being a non-discretionary directive to the Auditor General that he shall pay this money to the municipality and that these funds may be used “by the latter for any lawful purpose.” Id. at
Several statements made by the Court in the first Reading opinion shed additional light on the present problem. In deciding that mandamus was a proper remedy the Court noted that “mandamus will lie to compel action by an official where his refusal to act in the requested way stems from his erroneous interpretation of the law. [Citing case.] The present case falls squarely within these principles.” 415 Pa. at 311, 203 A. 2d at 479-80. Finally, the death knell was sounded for the Auditor General’s position in that case when we said at page 308, 203 A. 2d at 478: “ ‘The manner in which the fund was to be set up or administered was left by the legislature to the municipalities.’ ”, quoting from Commonwealth v. Souder, 172 Pa. Superior Ct. 463, 470, 94 A. 2d 136, 139 (1953), aff’d, 376 Pa. 78, 101 A. 2d 693 (1954).
The merits of the Reading mandamus were not reached by our Court until three years later, when, in Volunteer Firemen’s Relief Association of the City of Reading v. Minehart, 425 Pa. 82, 227 A. 2d 632 (1967), the result so clearly foreshadowed by our first Reading case came to actual fruition: the Auditor General was ordered to disburse the money. Facing practically the same problem confronting this Court today, we held in the second Reading case that the Auditor General could not read words into the Act of 1895, and since that act contained no language whatsoever indicating that death benefits had to be made available equally to all members of the firemen’s association, the Auditor General was not permitted to withhold any moneys on that basis. As we there recited, “while we concede the authority of the Auditor General to make regulations in connection with his statutorily imposed duties, we believe
This statement, as well as tbe decision of which it is a part, controls tbe controversy now before tbe Court. We can see no legal distinction between an attempt by tbe Auditor General to read, for example, a minimum retirement age into tbe Act of 1895 and bis former unsuccessful attempt to read equality of death benefits into it. Neither requirement can find any statutory support and both constitute a clear intrusion by an administrative officer into the chambers of tbe Legislature.
Appellants rely quite heavily upon a statement contained in Altieri v. Allentown Officers’ and Employees’ Retirement Board, 368 Pa. 176, 181, 81 A. 2d 884, 886 (1951) that a retirement system ought to bear some reasonable relation to tbe length of tbe public service of tbe recipients and also to tbe age of its beneficiaries.
Of course, we realize that there have been instances in which this Court has upheld the Auditor General when he refused to disburse funds to various pension and relief associations. However, those were cases in which the municipal associations were attempting to use Commonwealth money for purposes directly cowtrary to the words of the statute itself. Thus, in Hanover Twp. Police Pension and Benefit Fund Association Case, 396 Pa. 313, 152 A. 2d 705 (1959), we held that, under a statute similar to the Act of 1895, the members of the association could not distribute Commonwealth funds among themselves when the association dissolved, since the statute clearly called for the
The order of the Court of Common Pleas of Dauphin County issuing the writ of mandamus is affirmed.
The Act of April 9, 1929, P. L. 343, §403, 72 P.S. §403, specifically empowers the Auditor General to examine the records of those organizations receiving state funds in order to determine whether those funds are in fact being used for a purpose authorized by the statute under which they are being received.
“Any member of the Association who serves as an employee of the Fire Department for a period of twenty (20) years or more from and after the date of the organization of the paid Fire Department, shall he eligible to retire on a pension of no less than Seventy-five ($75.00) Dollars a month, or if a said member was paid in excess of One Hundred and Fifty ($150.00) Dollars a month, then one-half the salary received by such member from the City of Washington, Pa., as a member of the Fire Department, at the time of his retirement from service.” By-laws, Article 13. see. 4 (Record at 51a-52a.)
“Any member in good standing shall be entitled to have paid for him by the Association, Doctor and Hospital bills in cases not covered by compensation and where compensation is paid he shall have paid for him the difference between the amount received from compensation and the total amount of the bills, provided, however, that after a period of one year, the amount paid for such bills shall not exceed the amount to which the said member would be entitled were he on pension. The payment of bills due to accident shall be paid, regardless of amount, but those due to sickness must exceed $10.00 in order to receive payment under this section.” Bylaws, Article 13, see. 3 (Record at 51a.)
“In ease of the death of any active member of the Association in good standing or in case of the death of any member who has been placed on the pension list, his widow (but not including a widow by any marriage occurring subsequent to the date when said member was placed on the pension list), so long as she remains his widow, shall be entitled to elect to receive from the Association either the sum of Forty ($40.00) Dollars per month and Fifteen Hundred ($1500.00) Dollars, or to receive the sum of Twenty-five Hundred ($2500.00) Dollars and no monthly payments or further claim against the Association. . . .” By-laws, Article 13. see. 6 (Record at 52a.)
It cannot be gainsaid that the Act of 1895 nowhere defines a pension fund to be a fund which has a minimum age requirement. And it is a matter of common knowledge that pension funds are often geared to minimum years of service. Moreover, there is nothing in the nature of a pension fund that prevents the inclusion of medical and death benefits. These are also features quite common to many such funds. It has long been held that a pension is merely a bounty for past services, designed to provide the recipient with his daily wants. See, e.g., Ballurio v. Castellini, 29 N.J. Super. 383, 102 A. 2d 662 (1954); Bell v. Midland Natl. Life Ins. Co., 78 S.D. 349, 360, 102 N.W. 2d 322, 328 (1960); State v. City of Seattle, 61 Wash. 2d 196, 377 P. 2d 454 (1963). Under the federal Servicemen’s Indemnity Act of 1951, death benefits have been specifically held to be in the nature of a pension. Turner v. United States, 237 F. 2d 700 (8th Cir. 1956). Thus, to exclude the present fund from coverage under the Act of 1895 would have the effect of distorting the usual meaning of the term “pension fund” without any specific legislative directive, a practice contrary to basic canons of statutory construction.
The full title of the Act of 1945 shows even more clearly that pension plans not established pursuant to this statute are to be left undisturbed. This title reads: “An Act authorizing cities of the third class to establish an optional retirement system for officers and employes independently of any pension system . . . existing in such cities.’’ (Emphasis supplied.) Pennsylvania Laws, 1945 session, No. 362 at p. 903. Furthermore, the Statutory Construction Act specifically permits titles such as this to be used in ascertaining legislative intent. Act of May 28, 1937, P. L. 1019, §54, 46 P.S. §554.
The dissenting opinion, in addition to advocating the position that all pension funds should have a minimum retirement age, also decides that certain by-laws of the association run afoul of the Pennsylvania Constitution. We, of course, express no opinion on that issue as it was never raised below by either party nor briefed or argued on appeal. This fact is apparently admitted by the dissent for it suggests a remand to allow the parties to litigate the constitutional issue. Certainly, an issue as complex as this one appears to be, and one whose eventual resolution could affect many of the Commonwealth’s pension funds, should not even be considered by this Court when neither party has raised it. Abrams Will, 419 Pa. 92, 213 A. 2d 638 (1965); Muse-Art Corp. v. Philadelphia, 373 Pa. 329, 95 A. 2d 542 (1953); Montgomery Cty. Bar Ass’n v. Rinalducci, 329 Pa. 296, 197 Atl. 924 (1938). Moreover, to remand this case is tantamount to this Court telling the parties which issues to litigate, a practice heretofore eschewed.
Concurrence Opinion
Concurring Opinion by
I join in the majority Opinion by Justice Roberts.
I believe that each retirement or pension Act should have two requirements—(1) years of service and (2) a provision for a minimum retirement age. However, this is unfortunately a matter for the Legislature or for a legislative body and not for the Courts, which the dissenting Opinion overlooks. Moreover, Justice Cohen fails to properly analyze and unwittingly overlooks the crucial distinguishing facts in each and all of the cases cited in the footnote to his dissenting Opinion, namely, that those cases arose out of a statute or ordinance which contained a provision for a retirement age, and references in those Opinions to retirement age were pertinent and appropriate to the statute or ordinance involved and must be so considered and restricted. This distinction is made crystal clear by the statement in the majority Opinion in which Justice Roberts aptly said: “Appellants rely quite heavily upon a statement contained in Altieri v. Allentown Officers’ and Employees’ Retirement Board, 368 Pa. 176, 181, 81 A. 2d 884, 886 (1951) that a retirement system ought to bear some reasonable relation to the length of the public service of the recipients and also to the age of its beneficiaries. This reference to the age of the beneficiaries was intended to apply and must be limited to retirement systems under the Act or Acts which expressly or impliedly have such a requirement.”
With respect to the Constitutionality of two bylaws, if Justice Cohen is correct in his implication that they might violate Article III, Section 18 of the Constitution, then every retirement Act and every pen
See Com. ex rel. Schnader v. Liveright, 308 Pa. 35, 161 Atl. 697, which sustained the Constitutionality of the Act.
Dissenting Opinion
Dissenting Opinion by
I disagree with the majority that the Auditor General is not empowered to withhold the allocation of state funds on the basis that the present pension fund
Under the Act of April 9, 1929, P. L. 343, 72 P.S. §403,
The Act of 1895, as amended, plainly evinces an intention by the legislature to create a source of revenue necessary for the promulgation of relief funds and/or pension funds for city fire department employees. Appellee, however, in an effort to avoid the legal ramifications attendant to a pension fund, seeks to persuade us that the by-law in question falls within the broad category of “relief funds” and hence is in conformity with the avowed legislative purposes. I cannot agree. If the legislature intended pension funds to be included under the label of relief funds, it could have achieved
The majority, while agreeing that a pension fund was intended to be created pursuant to the Act of 1895, nonetheless takes the position that the Auditor General cannot read into, alter, or amend the statutory provisions so as to provide for a minimum age requirement, citing Volunteer Firemen’s Relief Association of the City of Reading v. Minehart, 425 Pa. 82, 227 A. 2d 632 (1967), as its authority. In the Reading case, over my dissent, we held that since the statute failed to contain language that the Special Death Benefit Fund should be made available equally and to all members of the Relief Association, the Auditor General had no sound basis in the statute to promulgate rules and regulations providing such limitations. Here there is a sound basis in the statute for the Auditor General’s interpretation. The Act of 1895 specifically refers to a “pension fund” and the Auditor General by requiring a minimum age to be present in order to receive benefits under the fund is doing nothing more than interpreting the words “pension fund” in accordance with sound principles of law enunciated on several occasions by our Court. This distinction, in my view, takes the instant case completely out of the framework of the Reading case. The Auditor General is not reading into or amending the statute to provide age qualifications, but on the contrary is only interpreting and giving meaning to the obvious legislative intent and purpose as indicated by the statutory words “pension fund.”
Therefore, our next inquiry must be whether or not the absence of a minimum age requirement renders a pension invalid as not being in conformity with what the law deems necessary. In Altieri v. Allentown Retirement Board, 368 Pa. 176, 180, 181, 81 A. 2d 884, 886 (1951), we unanimously held: “As was said in Retirement Board of Allegheny County v. McGovern, 316 Pa. 161, 173, 174 A. 400, ‘retirement acts are based on the theory of an adjusted compensation for time and service, payable in the future, provided the employee serves the required length of time and reaches
Obviously, the pension system in the instant case has no reasonable relation to the ages of its intended beneficiaries as required by the McGovern and Altieri cases.
Furthermore, the majority opinion seeks to distinguish Altieri on the basis that it has no application to the present ease, since it concerned only a retirement system established pursuant to the Act of May 23, 1945, P. L. 903, §1, 53 P.S. §39371 for third class cities. Such a distinction is completely unfounded and meaningless. The thrust of our unanimous decision in Altieri is so easily ascertainable by even the most cursory and superficial reading of the case. Altieri did-not rest upon the fact' that it arose under a third class cities act but rather rested upon what our Court deemed necessary to create a valid, workable, and enforceable pension plan vender any Act including the present one, namely, a minimum age is an absolute prerequisite to any pension plan promulgated by the legislature in this Commonwealth. There is no justification whatsoever in
With respect to the other two by-laws involved (the medical and death benefit provisions)
In Busser v. Snyder, 282 Pa. 440,128 Atl. 80 (1925), our Court upheld an attack against the Old Age Assistance Act of May 10, 1923, P. L. 189, on the ground that it was an appropriation of state funds for charitable and benevolent purposes to a certain class of persons in violation of Article 3, §18, of the Constitution. See also, Commonwealth ex rel. Schnader v. Liveright, 308 Pa. 35, 161 Atl. 697 (1932).
By the same token, any appropriation made by the Commonwealth to the Firemen’s Belief Association must be viewed as an actual appropriation to the class of persons comprising the Association, since they are the ultimate beneficiaries of the funds. To hold otherwise would permit the legislature to do indirectly that which “the Constitution prohibits it from doing directly.” To permit “A” and “B” Association to be a proper recipient of state funds and not “A” and “B” individually, would make a mockery of our Constitution.
Moreover, it is extremely important to note the historical development, both legislatively and judicially’ with respect to Firemen’s Belief Associations in this Commonwealth, thus further evidencing the serious constitutional questions posed by the instant case. In Philadelphia Association for the Relief of Disabled Firemen v. Wood, 39 Pa. 73 (1861), the first case dealing with appropriations of public moneys to Firemen Relief Associations, it was determined that legislative
I dissent.
Article 13, section 4 of the Association’s by-laws provides: “Any member of the Association who serves as an employee of the Eire Department for a period of twenty (20) years or more from and after the date of the organization of the paid Eire Department, shall be eligible to retire on a pension of no less than Seventy-five ($75.00) Dollars a month, or if a said member was paid in excess of One Hundred and Fifty ($150.00) Dollars a month, then one-half the salary received by such member from the City of Washington, Pa., as a member of the Eire Department, at the time of his retirement from service.”
“The Department of the Auditor General shall have the power, and its duty shall be, to audit the accounts and records of every person, association, corporation, and public agency, receiving an appropriation of money, payable out of any fund in the State Treasury, or entitled to receive any portion of any State tax for any purpose whatsoever, as far as may be necessary to satisfy the department that the money received was expended or is being expended for no purpose other than that for which it was paid. . . .
“If at any time the department shall find that any money received by any person, association, corporation, or public agency, has been expended for any purpose other than that for which it was paid, it shall forthwith notify the Governor, and shall decline to approve any further requisition for the payment of any appropriation, or any further portion of any State tax, to such person, association, corporation or public agency, . . .”
“(a) On and after the first day of January, one thousand nine hundred and nineteen, and annually thereafter, there shall be paid by the State Treasurer to the treasurers of the several cities, towns, townships, and boroughs within the Commonwealth, the entire net amount received from the top two per centum tax paid upon premiums by foreign fire insurance companies. . . . Each city, borough, town or township, receiving any payment from the State Treasurer hereunder, shall forthwith pay the amount received to the relief fund association of, or the pension fund covering the employes of the fire department, or of such fire company, or fire companies, paid or volunteer, now existing, or hereafter organized, in such city, borough, town, or township, as is or are engaged in the service of such city, borough, town or township, and duly recognized as such by the council or commissioners or supervisors, as the case may be, of such city, borough, town, or township. . . .” (Emphasis supplied.)
Curiously, a majority of the present members of this Court, Chief Justice Bell, Justice Mtjsmasno, Justice Jones, Justice Cohen and Justice Eagen have on several occasions subsequent to the McGovern and Altieri cases reaffirmed without equivocation the basic established principle that in order for a pension fund to be valid and enforceable it must contain some minimum age requirement. See Eisenberger v. Harrisburgh Police Pension Commission, 400 Pa. 418, 162 A. 2d 847 (1960); Wallow v. York Retirement Board, 383 Pa. 200, 117 A. 2d 685 (1955); Akims v. York Officers’ and Employees’ Retirement Board, 368 Pa. 182, 81 A. 2d 883 (1951), affirming the court below in Akins v. City of York, 63 York 173 (1950).
In addition, the writer of the majority opinion has as recently as 1966, in Taylor v. Abernathy. 422 Pa. 629, 635, 222 A. 2d 863 (1966), cited and quoted with apparent approval the well established principles enunciated in the McGovern case, namely: “The system of delayed compensation as contemplated by the Legislature is designed ‘to aid employees who have served a long period of time in public employment and have reached an age where through decreased earning power because of impairment of mental or bodily
“Any member in good standing shall be entitled to have paid for him by the Association, Doctor and Hospital bills in cases not covered by compensation and where compensation is paid he shall have paid for him the difference between the amount received from compensation and the total amount of the bills, provided, however, that after a period of one year, the amount paid for such bills shall not exceed the amount to which the said member would be entitled were he on pension. The payment of bills due to accident shall be paid, regardless of amount, but those due to sickness must exceed $10.00 in order to receive payment under this section. . . .
“In case of the death of any active member of the Association in good standing or in ease of the death of any member who has been placed on the pension list, his widow (but not including a widow by any marriage occurring subsequent to the date when said member was placed on the pension list), so long as she remains his widow, shall be entitled to elect to receive from the Association either the sum of Forty ($40.00) Dollars per month and Fifteen Hundred ($1500.00) Dollars, or to receive the sum of Twenty-five Hundred ($2500.00) Dollars and no monthly payments or further claim against the Association. . . .”
In Liveright, we held that the provisions of the Act of December 28, 1931, P. L. 1503, popularly referred to as the “Talbot Act” were not in violation of Article 3, §18, since the Act was a properly drafted measure to provide relief for the poor. In addition, the Court rationalized that the Act was not a charitable undertaking, but rather the fulfillment of a public function and obligation on the part of government to provide poor relief to persons without any means of support. All the eases heretofore decided seem to indicate that in order to conform to constitutional requirements, relief legislation must be geared to those persons who for one reason or another are in dire need of such assistance. Here the by-laws of the Firemen’s Relief Association permit benefits to be received without distinction between those not having the ability or means to maintain themselves and those who are in fact capable of supporting themselves.
Dissenting Opinion
Dissenting Opinion by
I would reverse the order of the court below. I agree with Justice Cohen’s view that the Auditor General is empowered to withhold the state funds in the instant case. I base such an opinion, however, solely on the view that Altieri v. Allentown Retirement Board, 368 Pa. 176, 81 A. 2d 884 (1951), controls in requiring that pension plans have a minimum age feature.
