James Francis Ryan, Philadelphia, for appellant.
George F. Douglas, Philadelphia, for appellees.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold, and Gunther, JJ.
[ 168 Pa. Super. Page 77]
In this action in assumpsit The City of Philadelphia Police Pension Fund Association (hereinafter called Association) appeals from a judgment for appellees entered by the court below sitting without a jury in the amount of $2,269.10.
Martin Diskin was a member of appellant Association for a period of years prior to his resignation from the police department on April 30, 1948. On December 19, 1946, Diskin designated as beneficiaries the five appellees*fn1 who would be entitled to receive the amount
[ 168 Pa. Super. Page 78]
payable from the Association in the event of Diskin's death before receiving any pension payments. On April 30, 1948, Diskin resigned from the police department and applied to the Association for a pension. His application was approved on May 12, 1948, and on June 1, 1948, appellant mailed its check to him dated June 1, 1948, for the first month's pension. Although this check was received by Diskin, it was never endorsed, cashed or negotiated by him. Decedent returned to the Association for cancellation the designation of beneficiary certificate as he was required to do under the Association By-Laws. This certificate was received by the appellant on June 22, 1948. On June 27, 1948, Diskin died leaving the five beneficiaries surviving him. Appellant stopped payment on its check and in lieu thereof mailed to the named beneficiaries a check for $214.35. This amount represented a pension payable to Diskin's estate from the date of his separation, to wit, April 30, 1948, to the date of his death, June 27, 1948. The beneficiaries did not accept this second check which was later returned to appellant and cancelled, but instead made application upon forms furnished by appellant for a withdrawal payment of $2,269.10 representing total dues paid into the Association by Diskin. Appellant refused payment on the ground that Diskin had applied for a pension and had 'received' the first pension payment representing pension for the first month.
The single question determinative of this appeal is whether the check of June 1, 1948, received by decedent but not endorsed, cashed or negotiated by him, payment of which was subsequently stopped by appellant, constituted a payment of the first installment of a pension to the decedent within the meaning of the by-laws of the Association.
The by-laws of the Association which are pertinent here provide as follows: 'Article X. Withdrawals Section
[ 168 Pa. Super. Page 791]
. Withdrawal payment right shall apply to any member of the Association who ceases to be an employee of the City of Philadelphia for any of the following causes: * * * (c) Upon the death of any member prior to becoming a pensioner or a pensioner prior to receiving his first pension payment. * * * Section 2. The amount of money to be withdrawn shall be the total amount of the dues paid into the Pension Fund by such employee * * *. Withdrawal Termination Section 3. Any petitioner, once he received a pension payment, shall cease to have any right to the withdrawal privilege. Rights of Designated Beneficiaries Section 4. Upon the death of any member who has not received a pension payment * * * there shall be paid to the beneficiary or beneficiaries designated by him in accordance with these By-Laws the amount provided for in Section 2 of this Article. Upon making such payment, all liability of the Pension Fund to the beneficiaries, heirs or estate of the decedent member shall be discharged and terminated. Withdrawal Application Members or their beneficiaries, heirs or estate desiring to withdraw in accordance with these By-Laws, shall make application on a blank form * * *'. ...