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COMMONWEALTH v. MOONEY ET AL. APPEAL CITY PHILADELPHIA POLICE PENSION FUND ASSN (11/12/52)

November 12, 1952

COMMONWEALTH
v.
MOONEY ET AL. APPEAL OF CITY OF PHILADELPHIA POLICE PENSION FUND ASSN



COUNSEL

James Francis Ryan, Philadelphia, for appellant.

Martin Vinikoor, Asst. Dist. Atty., Michael von Moschzisker, 1st Asst. Dist. Atty., and Richardson Dilworth, Dist. Atty., Philadelphia, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Rhodes

[ 172 Pa. Super. Page 31]

RHODES, President Judge.

The question presented on this appeal is whether the pension or retirement allowance due a policeman from the City of Philadelphia Police Pension Fund Association is exempt from attachment under a support order entered by the Municipal Court of Philadelphia County in favor of the pensioner's wife. The order of the court below sustaining the attachment will be reversed, the garnishee having appealed.

The wife's support order, entered March 21, 1949, was in the amount of $3 a week; arrearages aggregated $366. A warrant of seizure was issued and notice given to the Pension Fund Association as garnishee. The deserting husband receives $123 per month from the Pension Fund Association, which amount the wife seeks to attach and obtain for payment of her support order.

[ 172 Pa. Super. Page 32]

After hearing before Judge Linton of the Municipal Court, the warrant of seizure was confirmed, and an order made directing the Pension Fund Association, as garnishee, to pay to the clerk of the Municipal Court 50 per cent of the pension due and payable to the husband until arrearages have been liquidated or paid, and thereafter the weekly sum of $3. The Pension Fund Association was granted an exception to the order in so far as it requires the garnishee to pay the pension or retirement allowance towards the wife's support.

The court below held the fund was attachable in the possession of the garnishee, and apparently follows the reasoning of an earlier ruling in Com. ex rel. v. Dougherty, 1942, 44 Pa.Dist. & Co. 305, which was decided prior to the amendatory Act of June 10, 1947, P.L. 537, 53 P.S. § 344.

The police pension fund is set up under the Act of May 24, 1893, P.L. 129, as amended, 53 P.S. § 341 et seq. Section 2 of the Act of June 10, 1947, P.L. 537, adding section 4 to the Act of May 24, 1893, P.L. 129, as amended, 53 P.S. § 344, provides: 'The retirement allowance herein provided for shall not be subject to attachment, execution, levy, garnishment or other legal process, and shall be payable only to the beneficiary designated by this act and shall not be subject to assignment or transfer.' There is agreement that funds in the hands of municipalities and governmental agencies, owing to individuals, are not subject to attachment because of general public policy that the government shall be free from the annoyance and uncertainty arising out of disputes between individuals entitled to payments from public funds and others claiming a right therein by attachment. Personal Finance Co. v. Clement, 20 Pa.Dist. & Co. 283, 284; Fairbanks Co. v. Kirk, 12 Pa. Super. 210, 211. Although the Pension

[ 172 Pa. Super. Page 33]

Fund Association was originally incorporated as a private corporation, the legislative history thereof shows it to be an agency of the municipal government, and as such it carries on the duties imposed by the legislature. Bausewine v. Philadelphia Police Pension Fund Association, 337 Pa. 267, 269, 270, 10 ...


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