Firemen's Relief Ass'n v. Minehart

241 A.2d 745, 430 Pa. 66, 1968 Pa. LEXIS 672

• Court: Superior Court of Pennsylvania
• Decided: May 13, 1968
• Docket: Appeal, No. 15
• Status: Published

Opinions

Opinion by

Mr. Justice Roberts,

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.¹ The challenged by-laws provided (1) for pension benefits based solely upon years of service;² (2) for certain medical benefits for any member of the Association in good standing;³ and (3) for certain death benefits to the family of a deceased member of tbe Association.⁴ In response to this refusal to pay, appellee brought an action of mandamus in the Court of Common Pleas of Dauphin County. That court issued the mandamus, directing that appellee be paid its proper share of the tax moneys collected under the Act. From that decision the Auditor General and Treasurer have taken this appeal.

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, actually amend a legislative pronouncement? The answer to this question is clear. It cannot so amend. As this Court said in Commonwealth v. DiMeglio, 385 Pa. 119, 124, 122 A. 2d 77, 80 (1956): “The power of an administrative agency to prescribe rules and regulations under a statute is not the power to make law, but only the power to adopt regulations to carry into effect the will of the Legislature as expressed by the statute: [citing cases].” In the present case it nowhere appears that the “will of the Legislature as expressed by the statute” even remotely condones the arbitrary placing of these conditions upon pension plans, and we must therefore conclude that this administrative officer has stepped squarely upon the toes of our legislature in direct contravention of established principles of administrative law and in flagrant disregard of Pennsylvania’s judicial precedents.

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 , 203 A. 2d at 478. (Emphasis supplied.) Cf. Firemen’s Relief Association v. Scranton, 217 Pa. 585, 66 Atl. 1103 (1907).

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 that in tbe present ease the rules laid down by him have no sound basis in tbe statute and therefore are not in furtherance of bis auditing duties.” Id. at 89, 227 A. 2d at 635.

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.⁵

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. '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. Moreover, Altieri is not applicable to the present case since it concerned a retirement system established pursuant to the Act of May 23, 1945, P. L. 903, §1 et seq., 53 P.S. §39371 et seq. Not only is the Washington Firemen’s Relief Association administered completely independently of that act, but that act, as indicated by its very title, “Optional Retirement System for Officers and Employes” is not even intended to govern all the relief, retirement and pension associations in Pennsylvania’s third class cities.⁶

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 payment to a policemen’s fund. The Auditor General was therefore justified in holding that a dissolved fund could not pass benefits to its former members. Similarly, in Commonwealth v. Bonder, 376 Pa. 78, 101 A. 2d 693 (1954), affirming 172 Pa. Superior Ct. 463, 94 A. 2d 136 (1953), an even more flagrant case, it was held that the Auditor General could interpret the Act of 1895 to forbid payment where association members were fraudulently diverting funds to their own private use. In both of these instances, the Auditor General was merely following clear legislative language and intent. In sum, it is one thing to say that the Auditor General is charged with the duty of inspecting the financial records of the associations to which he disburses Commonwealth funds; but it is quite another thing to urge, as do appellants, that an administrative body can amend a statute and then conclude that a given municipality has not conformed to this new, administratively created statutory language.⁷

The order of the Court of Common Pleas of Dauphin County issuing the writ of mandamus is affirmed.

Mr. Chief Justice Bell joins in this opinion and files a concurring opinion. Mr. Justice Eagen concurs in the result.

1 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.

2 “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.)

3 “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.)

4 “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.)

5 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.

6 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.

7 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.