*1 265 ORDER PER CURIAM.
In of the trial court’s failure to comply explicitly view 236, Pa. the mandate of Commonwealth v. Neely, (1989), 561 A.2d the verdict and sentence are vacated the case is remanded for new trial.
v. HAFER, Auditor Barbara General of Commonwealth Pennsylvania, and the of the Auditor Office Appellees. Pennsylvania,
Commonwealth of Supreme Pennsylvania. Court of
Argued May 1990. Sept.
Decided 1990. *2 Busillo, Gary Lightman, II and M. Harris- Anthony C. appellants. for burg, Paul Schwartz, Chief and Ya- Deputy J. Counsel
Robert tron, Counsel, for Auditor General’s Office. Chief Bell, amicus, for Harrisburg, Employ- C. Public
Robert Study ees’ Retirement Com’n. NIX, LARSEN, FLAHERTY, C.J.,
Before and CAPPY, McDERMOTT, ZAPPALA, and PAPADAKOS JJ.
OPINION ZAPPALA, Justice. is whether appeal
The issue this Funding Pension Plan Municipal Recovery Standard Act, 1984-205, requires municipali- 895.402(g), Act 53 P.S. § state aid pension plan ties more than one to distribute unit allocation formula 895.402(e). act, that 53 P.S. § Lodge Pennsylvania appellants, members, Thomas of its of Police and two Fraternal Order officer, and Township police Merion Megless, Upper an officer, Evens, initiated a Pottstown William a Petition by filing Court action the Commonwealth of Penn- the Auditor General against Bailey, Donald Review In the Office of the Auditor General. against sylvania,1 Petition, that Auditor General had the FOP asserted mu- that receive the various advised State aid that each such nicipal pension system as it plans aid its among allocate its State may in giving that complained deems The FOP appropriate. approving municipal such advice and audits in reliance on funds where State aid had been distributed advice, acting contrary the Auditor General was FOP, Act 205 According of Act 205. requirements among distributed requires to the unit allocation formula *3 pension programs according 402(e). set out in Section admitted to the aforemen- giving
The Auditor General advice, it to the Act. contrary tioned but denied that was General, the According 402(g) to the Auditor vests discretion to of the governing bodies among determine the distribution of State aid appropriate no Agreeing genuine their that there were pension plans. fact, the filed cross-motions for parties issues of material granted Court sum- summary judgment. Commonwealth General, and this in favor of the Auditor mary judgment appeal followed. provides of Act 205 as follows: expenditures general municipal pension
Authorized system state aid.— re- municipal pension system State aid
Any general defray shall used to the by municipality only ceived be maintained pension plan pension plans by cost of the If one is maintained municipality. only pension plan 502(c), Bailey’s has been substituted 1. Pursuant to Pa.R.A.P. successor party. as a general then the total amount of the municipality, by aid received the munic- pension system by shall, receipt the treasurer of days by within ipality fund or the deposited pension be municipality, to the funding applicable pension alternate mechanism is maintained pension plan If more than one plan. of the governing body municipality then the municipality, of the total proportion determine the annually aid re- general municipal system amount which shall be credited to each ceived and the total amount of the munici- pension plan received State aid pal the treasurer of the shall, receipt by days within or alter- deposited funds municipality, be applicable respective mechanisms funding nate that determination. accordance with together must read argues The FOP that this section be 402(e), part, in relevant as provides, with Section follows: general municipal system State
Allocation aid.— , aid shall
(1) municipal pension system State eligible recipient municipality to each distributed day occurring than the first business no later October____ month of of units attributable to ... number town eligible recipient city, borough, incorporated township shall be as follows:
(i) officer—two units Police (ii) units Firefighter —two *4 officer or (iii) firefighter— other than Employee one unit. general municipal pension system The amount of by dividing unit shall determined per initially
State aid be municipal pension system of the general the total amount the total of units certified by aid available number If maximum in municipalities. specified all by eligible (f)(1) applicable, general is the amount subsection unit municipal pension system per municipalities municipality municipal- all other than the ities to the maximum aid amount in subject specified (f)(1) shall adjusted. adjusted subsection be amount municipal pension system per State aid unit municipalities by attributable to unaffected the aid maxi- (f)(1) specified mum subsection shall be determined by the total amount of dividing general municipal pension available, excluding State aid after 25% total for each to which the maximum aid applicable, by amount is the total number of units certi- eligible fied all unaffected the aid (f)(1). maximum specified subsection The FOP first argues words of the statute clearly require 402(e) that the unit allocation formula of Section provision read into the distribution so 402(g) as to effect give provisions. to all the statute’s This is argument whole, unfounded. Although statute must be read as a there is no authority removing language from the context of the section in which appears adding it it to a legislature section where the chose not to it. put Indeed, acceptance argument of this would cause the language question to be mere surplus- The unit age. allocation formula of Section by its terms is determining limited to the total amount of aid each municipality shall receive from the general municipal pen- sion system State aid fund. If municipalities must follow same in distributing formula the aid among their various pension plans, proportion there is no to be deter- bodies; mined governing proportion has been determined by legislature.
Assuming arguendo language that the of the statute does it, not clearly meaning demonstrate the they attribute to argument, FOP makes a second from Statutory Con- Act, struction legislative this was the intent. The First, refutation of this is argument although twofold. we clear, find that the statutory language precluding use of intent, the rules of legislative construction ascertain we *5 find that it accords the Auditor General’s clearly actions. the governing body “[T]he determine the of the total amount annually proportion general municipal pension state aid which shall added.) pension plan____” (Emphasis be credited to each Second, of the rules of construction lead application would us to the same conclusion. examination of the occasion and for the necessity
Our statute, enacted, the circumstances under which it was remedied, obtained, mischief to object be former the same of the upon subject, consequences law interpretations, contemporaneous legisla- various and the 1921(c)(l)-(7), history, tive Pa.C.S. leads us to the fol- lowing conclusions.
Prior to enactment of Act required the law that the entire amount of state aid received from the tax on foreign insurance be allocated for casualty premiums solely Firefighters the benefit of funds. pensions foreign premiums. were funded a tax on fire insurance None of these monies could be allocated for or distributed Further, employee pension non-uniformed funds. the formula used to funds was not on allocate actual cost or need. One of the effects of that formula was that some were overfunded and others were se- The verely Employee underfunded. Public Retirement Commission, which established to examine Study was issue, estimated that “unfunded accrued liabilities of munic- funds in been more ipal Pennsylvania increasing by [had] than million and ... billion.” $150 $2.5 [exceeded] Report to the General and the Governor Assembly 1983, page i. To this situa- Pennsylvania, January rectify tion, the recommended that aid be allocated to Commission plans based actual employee partic- also recommended the aid no ipation. Commission longer particular plans, be dedicated but be form the municipalities of non-restricted allocations could to adjust particular distribute at their discretion local needs. would defeat approach, we to follow the FOP’s we
Were principal purposes rectifying of Act one some disparity previous system whereby under underfunded. Under the were overfunded and others plans *6 402(g), munici- interpretation Auditor General’s the state aid as palities capacity have distribute ensure to correct the imbalance and thereafter necessary their fiscal and actuarial soundness all integrity reasoning, municipali- Under the FOP’s pension programs. distribution, no discretion as to and the state aid ties have any meaningful way recovery cannot be used municipal pension systems. program for- challenge, put The reason for the FOP’s underlying legislature ward as an “unreasonable result” which the intended, is the that in some possibility could not have police pension entirely where funds were once aid, contributions, no requiring employee funded state the aid in such a governing body might way distribute might necessary. that contributions become employee assertion, speculative neglects Whatever the truth of this it question the fact that the contributions generally subject bargaining, a for collective and that through process might agreed municipalities, it that necessary not should make contributions. employees, contributions, Nor do if agree requiring employee we occurred, this result would be unreasonable. It would be to turn the statute itself for wholly inappropriate against of one group expense fiscal benefit at the others and public large. to the detriment of the at See Pa.C.S. 1922(5). §
The order of the Commonwealth is affirmed. Court J., LARSEN, dissenting opinion files CAPPY, JJ., join. PAPADAKOS LARSEN, dissenting. Justice
I dissent.
The issue in appeal is whether Section Municipal Pension Plan Funding Standard Recovery (hereinafter 205) (53 Act referred to as Act P.S. 895.402(g)) requires municipalities with more than one § plan to aid distribute State the unit 402(e) (53 allocation formula of that act P.S. § 895.402(e)), 402(g) gives or whether said Section each such municipality receiving Municipal Pension System State aid absolute discretion to determine annually how the aid is to be distributed to its various plans. holds that Act 205 majority vests receiv- ing State unfettered discretion in distributing that aid and among pension plans. between its various For the follow, I disagree reasons that with the majority and would reverse the order the Commonwealth Court. provides, of Act 205 in the part material to this proceeding, as follows:
(e) general municipal pension system Allocation of State aid.—
(1) municipal pension system State aid shall be eligible distributed to each recipient municipality no later than the first business day occurring month of For the period ending October. with the distri- during bution made calendar year the allocation of aid for pursuant (4). distribution shall be to paragraph For period commencing with the distribution made during calendar year the allocation of aid for distri- pursuant (5). bution shall be to paragraph Any allocation of aid unit per shall be based on the number of units pursuant to paragraph as certified by applicable eligible municipalities. Any allocation of aid shall be pursuant (f). to the máximums in specified subsection
(2) The applicable of number units shall be attributable to each employee active who on employed was a full-time for basis a minimum of six prior consecutive months December 31 preceding the date of certification and who participating was in a pension plan maintained by municipality, provided that the maintains municipality employ- of plan type applicable generally to December prior on or established ee was either 31, 1984, has December 1984, or, after if established three for at least by that maintained been per of units number applicable The plan years. second eligible recipient county to each
attributable The officer. police for each two units shall be class eligible to each attributable of units number applicable township town and incorporated city, borough, recipient be as follows: units (i) officer —two Police (ii) units Firefighter —two ' or firefight- officer (iii) than other Employee unit. er —one system general municipal pension
(3) The amount of dividing initially by determined unit shall per State aid system municipal pension general total amount of units certified by available the total number State aid If maximum specified by eligible municipalities. all general (f)(1) the amount applicable, subsection aid unit per pension system municipal- other than the municipalities all specified maximum aid amount subject ities amount (f)(1) adjusted. adjusted shall be subsection per State aid unit municipal pension system aid maxi- unaffected attributable (f)(1) shall be determined specified subsection mum general municipal pen- dividing the total amount available, excluding after sion 25% eligible all munici- *8 of units certified total number the in sub- specified aid maximum by unaffected the palities (f)(1). section in as provides, part, Act 205 material 402(g) of
follows: general municipal expenditures of
(g) Authorized system aid— pension State pension State aid received system general municipal Any of defray the cost only shall be used to by municipality or pension plan the maintained by the If municipality. only pension plan one is maintained by then general the the total amount of the municipality, municipal pension by received the munic- shall, ipality receipt within 30 the treasurer days by the in the municipality, deposited pension be fund or the applicable alternate mechanism the funding pension to pension plan more than one is maintained by plan. If the then the municipality, governing body the mu- nicipality shall determine the annually proportion of the the general municipal pension system total municipality Aid received which shall be credit- pension plan ed to total amount of the system State aid received by shall, within 30 days receipt by the deposited Treasurer of the municipality, funding funds alternate mechanisms respective pension plans accordance with that determi- (Emphasis supplied) nation.
“The
of all
object
interpretation and construction of stat-
utes is
ascertain and effectuate the intention of the
1972,
6,
Act of
Assembly.”
P.L.1339,
December
290, 3,1
1921(a).
No.
“Every
Pa.C.S.A.
statute shall be
§
construed,
if possible,
give
provisions.”
effect
to all its
Id.,
O’Bannon,
Zimmerman v.
497 Pa.
275 to each and give every 402 effect and Section provisions formu- 402, including the unit allocation of Section provision Section and the 402(e), construing of Section la determine annually to directing the language to of State aid of the total amount proportion I find that plans? its pension credited to each of and logical, persuasive are advanced the FOP arguments Legislature. intent of the in accord with the intent, all sections of a statute determining legislative In other, each together conjunction read and must be Wilson the entire statute. reference to and construed with 146, 452 A.2d Industries, Penn Pa.Super. 306 v. Central Thus, legislative intent (1982) determining together with all section must be read 402(g), that refer- 402 and construed with of Section provisions of the 402(e). Section, including entire ence to the Municipal Pension financing the General As a means (Act by Section Program State Aid established System 18, 1984, P.L.1005, No. 205 53 P.S. of December § 895.402) allocation of: the Act mandates on premium insurance tax entire of the proceeds “[T]he which shall be companies, insurance foreign casualty account, income any a investment placed into revenue proceeds portion and the proceeds, earned on those fire insurance foreign tax on premium the insurance of the distribu- the amount companies represents section paid firefighters pursuant applicable tions on the amount of income earned 706 and investment those distributions” 402(e), 895.402(b). Pursuant to Section
53 P.S. § eligible municipality to each shall be distributed of certified units attributable upon the number of units number municipality. each such as is established eligible municipality to each attributable units, units, firefighter officer—two police follows: —two firefighter officer or a police other than a —one (1)for officer Thus, that: provides unit. the Act plan, police pension is a of a who member aid; (2) firefighter shall receive two units of for each who is a firefighters’ pension plan, member the municipality aid; shall receive units two for each employee *10 who is neither police firefighter a officer nor a and is a who of municipal pension plan, member a the one unit aid. Reading provisions receive of the of Section conjunction in unit the allocation formula estab- 402(e) lished section to leads the conclusion that each municipality with more than one pension plan must distrib- ute pension plans the State aid to each of its upon the same unit formula used to establish its allocation of aid. legislature provided has that the State aid delivered to municipalities the must be based the unit upon allocation of 402(e). formula It little makes sense to mandate of allocations aid based the unit which upon formula takes into account the in police number of the employees police pension plan, firefighter the number employees firefighters pension plan the and number of non-uniformed in employees pension plans, other then and allow the munic- ipalities to disregard “weight” formula and the given to police firefighter the and in employees disbursing the aid to municipal the various pension plans. the Conceivably, permits chance, majority’s holding municipality, a which by has 15 police employees participating in a police pension plan, firefighters 15 in a participating firefighters’ pension plan and non-uniformed in employees participating a municipal pension plan receiving non-uniformed and total a of 90 units of State aid to exercise absolute and discretion the distribute entire 90 units of aid to one only case, plans. If this is the as the majority surely holds, purpose then what the unit allocation formula? say 1. merely To that the unit allocation formula of Section provides eligible a municipal- means which State aid is allocated to way ities is in to no relevant the distribution of that aid to the municipal pension plans purpose various does not inform us question why legislature the formula. The remains: did the fit see a police employee establish each unit formula and direct each firefighter employee represent units if two of aid not in problems inherent remedy enacted to Act 205 was previous Under that of aid allocation. prior system without disbursed was partici- of members who were to the actual number regard received aid Municipalities in such pating plans. police pensions needed to fund its excess of the amount other As purpose. monies for could not use the excess in those result, funds excess funds and variances arose would swell with the police depart- accruing comparable of benefits level Now, Act provisions under the distribution ments. the number of units attributable of State aid is based in a participating municipal pension to each active of units directly Aid is related to the number attribut- plan. eligible participants able 402(f) provides:
plan. Additionally, *11 (1) to receive an allo- No shall be entitled aid in an municipal pension system cation of amount than of the total amount of greater 25% State aid available. general municipal pension system to an allo- No shall be entitled receive aid in an general municipal pension system cation of exceeds the actual financial aggregate amount which municipal pension plans police requirements officers, other than paid firefighters employees police or firefighters municipal- or maintained paid officers any aggregate less the amount of annual member ity, during succeeding plan contributions the next actuarial reported complete as the most recent year, filed with the commission. report It is the 895.402(g). duty eligible municipalities 53 P.S. aid, propor- receive State to determine the which aid, tion of the total amount of the received that munici- plans each of its is entitled pality, municipal pension upon the certified units attributable to each to receive based plan. such insuring ultimately
purpose the aid distributed firefighter pension plans formula basis? is done so on the unit holding The ignores the unit majority allocation part formula which forms a fundamental of Section 402 and funding municipal leaves the the whim of each municipality. majority’s construction of permits disparities statute continued funding process allowing municipalities distribute State to their plans various pensions regard without statutory allocation provisions which are unit alloca- tion formula of which insure that each of municipal pension eligible municipalities funds more than one receives a plan proportionate share of State aid. The construction contra majority’s to legis- intent; I lative therefore dissent. CAPPY, JJ.,
PAPADAKOS and join dissenting opinion.
v. KAUFMANN, Bruce Honorable W. Honorable Charles L. Durham, Jr., Higgins, Hoyle, James H. Lawrence T. Scarlata,
Esq., Respondents. and Antonia L. *12 Supreme Pennsylvania. Court
Argued May 1990. Sept.
Decided 1990. Peruto, Sr., A. Philadelphia, Charles for petitioner. Keuch, D.C., Robert L. Washington, for J.I.R.B. NIX, C.J., FLAHERTY, Before McDERMOTT, ZAPPALA, CAPPY, PAPADAKOS JJ.