144 A. 897 | Pa. | 1928
Argued November 28, 1928.
The plaintiff, Theodore Homan, was an employee of the City of Philadelphia for approximately twenty-one years, ending in 1916, when he became and still is an officer of the state Superior Court. By Act of May 20, 1915, P. L. 566, as amended by Act of July 5, 1917, P. L. 689, employees of cities of the first class, having served for twenty years and being sixty years of age, are entitled on withdrawal from such service to receive from the city a life pension under conditions stated therein. The acts created a pension board consisting of the mayor and other designated city officials, to which plaintiff, on November 19, 1920, presented his application for pension, averring, inter alia, that he became sixty years of age on the ninth of that month. His application was made on the usual blank form furnished by the board, which stated just below his signature that: "In addition to the above, applicant must furnish to the board of pensions satisfactory proof of the correctness of the date of birth as stated herein." While the application stated that he was born November 9, 1860, he *85
furnished the board no proof whatever of the fact until February 18, 1927, when he filed the affidavit of himself and of his brother giving the date of his birth as above stated. No question is raised as to the sufficiency of this proof, but, in place of granting the pension, the board directed the claimant to file a new application. Thereupon the plaintiff (claimant) petitioned the trial court for a writ of mandamus to compel the pension board to grant his claim effective as of the date of filing his application (November 19, 1920). To the alternative writ a return was made and later joinder of issue filed. The case came to jury trial, which resulted in a disagreement. Thereupon each party moved for judgment on the whole record. In Davies v. City of Pittsburgh,
Keeping in mind that what the petition asks is not that the board proceed to decide the case, but that it be ordered to award petitioner the pension from the date of his application, this order could not be made. The pension board is a quasi-judicial body and its acts, so far as they require judgment and discretion, cannot be controlled by the courts. See Com. v. Phila.,
It is the duty of the board to conserve the pension fund and the requirement that the statement of the date of birth in an application be supplemented by other proof is reasonable and valid. The loss if any that plaintiff *87 may here sustain results from his delay in meeting the requirement.
Section 2 of the Act of 1915, (P. L. 567), empowers the board to "make such reasonable rules in the premises as such board may deem necessary to effectually carry into effect the provisions of this act." There seems to be, however, nothing in the statutes or in any rule adopted thereunder requiring that proof of the date of birth must accompany the application or be furnished in any specified time. Hence, in the instant case, the application being on file and supplemented by unquestioned proof, the pension should have been awarded as a ministerial matter from the date of filing such proof, without requiring a new application, the amount to be adjusted by the board. As appellee's counsel stated at bar the readiness of the board to make such allowance, we assume no mandatory order will be required. It being a ministerial matter, however, such order, if necessary can be made. As to what if any right plaintiff may have to a pension prior to the filing of his proof, or in what manner he can assert the same, we need not enquire. We might say, however, that plaintiff's being in the employ of the Superior Court is no legal answer to his application for a pension. As the return makes no denial of the petitioner's averment that he has no remedy at law, we need not enter upon a consideration of that question, but might suggest that an action at law would not be an adequate remedy for a pension payable in monthly installments.
Plaintiff made contributions to the pension fund as provided by statute so long as the board would accept the same, so as to that he was not in default: See Insurance Co. v. Benefit Society,
The judgment is affirmed, reserving to plaintiff the right to move the trial court to reinstate the mandamus proceedings unless defendants shall within thirty days allow his pension, beginning February 18, 1927. Costs of the appeal to be paid out of the pension fund. *88