Pension Fund of the City of Pittsburgh Appeal

362 A.2d 1011, 239 Pa. Super. 111, 1976 Pa. Super. LEXIS 1894
CourtSuperior Court of Pennsylvania
DecidedMarch 29, 1976
DocketAppeal, No. 214
StatusPublished
Cited by12 cases

This text of 362 A.2d 1011 (Pension Fund of the City of Pittsburgh Appeal) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pension Fund of the City of Pittsburgh Appeal, 362 A.2d 1011, 239 Pa. Super. 111, 1976 Pa. Super. LEXIS 1894 (Pa. Ct. App. 1976).

Opinion

Opinion by

Spaeth, J.,

This is an appeal from an order attaching funds under the control of the City of Pittsburgh Pension Fund.

On July 18, 1974, the lower court issued an order requiring the relator to pay the relatrix $160 per month, representing $150 for support and $10 against accumulated arrearages of $300. When the relator did not make the required payments, the relatrix petitioned for the enforcement of the order. At the hearing on the petition the relator testified that his monthly income consisted of Social Security payments of $244.70 and a retirement pension of $357.50 from the City of [114]*114Pittsburgh. On August 13 the lower court issued an order

“that the Pension Fund of the City of Pittsburgh, having funds due to the above named defendant, pay to the Family Division .... One Hundred and Sixty ($160.00) Dollars a month (allocated to the monthly support order of $150.00 and $10.00 on arrearages of $555.13) from the pension allowance of the said defendant until further order of this court.” Record at 14a.

When the Pension Fund did not comply with this order, the court issued a rule to show cause why the Executive Director and the Board of Directors of the Pension Fund should not be held in contempt. Two hearings were held, and on November 14 the court re-issued its August 13 order, only modifying the order to change the statement of arrearages to $1,005.13. This appeal by the Pension Fund followed.

I

The Act of May 28, 1915, P.L. 596, 53 P.S. §23561 et seq., governs pension funds of cities of the second class. Because Pittsburgh is classified as a city of the second class, its pension fund is regulated by the Act.1 Section 12, 53 P.S. §23572, provides that:

“The compensation or pension herein mentioned shall not be subject to attachment or execution, and shall be payable only to the beneficiary designated by this act, and shall not be subject to assignment or transfer.”

[115]*115This provision appears free of any ambiguity.2 The lower court, however, found that two later statutes “operate to amend and partially repeal the Act of 19Í5”; in the lower court’s view, these statutes show that the legislature has “changed its philosophy toward attachment of wages for support of the wife and children.” Opinion at 4.

—A—

The first of the two statutes relied on by the lower court is the Act of May 10, 1921, P.L. 434, §1, 48 P.S. §136, which provides in relevant part: “Whenever any court of competent jurisdiction has made an order or entered a decree of judgment against any husband requiring him to pay any sum or sums for the support of his wife or children or both, the court may issue the appropriate writ of execution against any property, real or personal, belonging to the defendant to enforce said order ... and the said court may issue a writ of attachment ... against any money or property to which said husband is entitled, whether under what is known as a spendthrift trust or otherwise; ... and, in cases of levy on, or attachment of, any trust, said levy ... shall remain a continuing levy until the order, decree, or judgment has been paid in full ... The person against whom such an order, decree, or judgment is made shall not be entitled to the benéfits of any exemption law now in force or hereafter passed. The provisions of this act shall apply to any trust, whether" it is such a trust as is known as a spendthrift trust or otherwise ...”

We recognized in Commonwealth v. Berfield, 160 Pa. Superior Ct. 438, 441, 51 A.2d 523, 525 (1947), that “the husband’s liability is imposed by law as an incident of [116]*116the marital status,” and that “a wife may look to a fund payable to her husband, however safeguarded by law or by the language of its creation, from attachment by others.” We reaffirmed this view in Commonwealth ex rel. Roviello v. Roviello, 229 Pa. Superior Ct. 428, 435, 323 A.2d 766, 771 (1974), there saying that the husband’s duty of support “has long been considered by the state as a ‘paramount’ obligation.” Accordingly, we have subjected a husband’s interest in a spendthrift trust to a wife’s order of support. Gessler v. Gessler, 181 Pa. Superior Ct. 357, 124 A.2d 502 (1956). In Lippincott v. Lippincott, 349 Pa. 501, 37 A.2d 741 (1944), our Supreme Court did the same. See also Stewart’s Estate, 334 Pa. 356, 5 A.2d 910 (1939).

However, we have never given the Act of May 10, 1921, the broad construction placed upon it by the lower court. To the contrary, in Wargo v. Wargo, 190 Pa. Superior Ct. 356, 358, 154 A.2d 339, 340-341 (1959), we limited the application of the Act, stating: “It is apparent that the primary object of this statute was to authorize the collection of support orders from spendthrift trusts.” Furthermore, we have never interpreted either the Act or the general policy regarding a husband to support his wife to mean that the legislature may not preclude attachment. Indeed, in Commonwealth v. Berfield, supra at 441-442, 51 A.2d at 525, we specifically recognized the legislature’s power to immunize a fund from attachment:

“Thus, it has been consistently held that a wife may look for support to a spendthrift trust, though created for the sole benefit of her husband [citations omitted]. So also, an order against a husband for support can be enforced out of workmen’s compensation payments notwithstanding the provision ... exempting such payments from levy, execution and attachment. On the same principle, in spite of statutory exemption from attachment ... a wife may enforce the payment of her support out of wages due her husband in the hands of his employer [citation [117]*117omitted]. The above authorities however go no farther than to say that in specific circumstances a wife is not barred from looking to a fund for her support which is exempt from attachment as to others. But certainly Congress .... has the power to immunize a fund from every attachment, including process on behalf of a wife for the collection of a support order. The Railroad Retirement Act is such legislation and must be so construed .... The provision of the act exempting the fund from attachment was not in aid of delinquent husbands seeking to evade their responsibilities but was intended solely to relieve the Federal authorities as administrators of the fund from the annoyance of attachment of pensions or annuities in their hands, payable to railroad employees after retirement.”

Commonwealth v. Mooney, 172 Pa. Superior Ct. 30, 92 A.2d 258 (1952), is a similar case. There the statute exempted retirement allowances paid by the City of .Philadelphia Police Pension Fund from attachment, execution, or levy.3 We explained the policy behind this exemption:

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Bluebook (online)
362 A.2d 1011, 239 Pa. Super. 111, 1976 Pa. Super. LEXIS 1894, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pension-fund-of-the-city-of-pittsburgh-appeal-pasuperct-1976.