Appeal, No. 144, Jan. T., 1951, from judgment of Superior Court, Oct. T., 1950, No. 204, reversing judgment of Court of Common Pleas No. 7 of Philadelphia County, June T., 1949, No. 1779, in case of Mary E. Diskin et al. v. The City of Philadelphia Police Pension Fund Association. Judgment reversed.
George F. Douglas, with him George F. Douglas, Jr., for appellants.
James Francis Ryan, for appellee.
Before Stern, Stearne, Jones, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE HORACE STERN
The decision of this controversy depends on the interpretation of a by-law of the City of Philadelphia Police Pension Fund Association.
Martin Diskin was a member of that Association for a long period of years during the course of which
he paid dues in the total sum of $2,269.10. In 1946 he designated his son, his three daughters, and his sister-in-law, who are the five plaintiffs in the present action, as the beneficiaries entitled to receive the amount payable by the Association in the event of his death before receiving any pension payment. This designation was in pursuance of a section of the by-laws which provided that "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 deceased member shall be discharged and terminated." Section 2, thus referred to, provided that "The amount of money to be withdrawn shall be the total amount of the dues paid into the Pension Fund by such employee: ...." Another section provided that "Withdrawal payment rights 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." By still another section: "Any pensioner, once he receives a pension payment, shall cease to have any right to the withdrawal privilege."
On April 30, 1948 Diskin resigned from the Police Department because of poor health and applied to the Association for a pension. His application was approved May 12, 1948, and on June 1, 1948 the Association mailed to him its check of that date in the sum of $111.05 for his first month's pension. Diskin never endorsed, cashed or negotiated this check. He died on June 27, 1948. On October 1, 1948 the Association stopped payment on the check, the assistant secretary
testifying that their pension checks were "void after thirty days"; in lieu thereof the Association mailed to the executrices of Diskin's estate its check for $214.35 covering the entire amount of the pension due from the time of his separation, April 30, 1948 to the date of his death, June 27, 1948. This check was returned by plaintiffs on the ground that they were entitled to the withdrawal payment of all the dues paid by decedent, namely, $2,269.10, because, as they contended, no pension payment had been received by him, and they brought suit to recover that amount. The trial court, sitting without a jury, rendered judgment for plaintiffs, but, on appeal to the Superior Court, the judgment was reversed, (168 Pa. ...