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RUPERT v. POLICEMEN'S RELIEF AND PENSION FUND. (01/17/57)

January 17, 1957

RUPERT, APPELLANT,
v.
POLICEMEN'S RELIEF AND PENSION FUND.



Appeal, No. 185, March T., 1956, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1956, No. 2312, in case of Margaret Rupert v. Policemen's Relief and Pension Fund of the City of Pittsburgh et al. Judgment affirmed; reargument refused March 6, 1957.

COUNSEL

James A. Danahey, with him J. I. Simon, for appellant.

John R. Luke, for appellee.

Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Chidsey

[ 387 Pa. Page 628]

OPINION BY MR. JUSTICE CHIDSEY

This appeal raises the question whether an Act of the Legislature amending an earlier Act by changing the class of beneficiaries entitled to a pension fund after the death of the pension member, can be applied retroactively in favor of the designated beneficiaries under the amending Act.

[ 387 Pa. Page 629]

The facts, which are stipulated, may be summarized as follows: The decedent, William C. Rupert, worked continuously as a patrolman in the police department of the City of Pittsburgh from the time of his appointment, June 12, 1923, until his death on October 10, 1955. Upon entering the department decedent contributed a portion of his monthly salary to the Policemen's Pension Fund Association of that city, hereinafter referred to as the old fund. He complied with the charter and by-laws of the latter association and paid the necessary dues until August 3, 1935 when he applied for membership in the Policemen's Relief and Pension Fund of the City of Pittsburgh, hereinafter referred to as the new fund, created by the Act of May 22, 1935, P.L. 233, 53 PS § 9444 et seq. In accordance with subsection 3 of Section 8 of the Act of 1935 the application filed by the decedent provided as follows: "I hereby make application for membership in the [new fund] ... and in consideration of being admitted to membership therein, I hereby waive all rights to receive or be paid any pension other than a Death Benefit from the [old fund] ... and consent that the Charter and By-Laws of the [old fund] ... shall be so amended as to provide for the payment of Death Benefits only and no other pensions. I hereby assign to the [new fund] ... all amounts contributed by me to the [old fund] ... The amount assigned by me is to be credited to my account in the [new fund] ... which shall repay the amount thereof to me or my executor or administrator in case I should resign ... or should die while in active service ...". (Emphasis supplied).

At the time decedent applied for membership in the new fund Section 11 of the Act of 1935, supra, provided: "When any member of the fund shall resign or be dismissed from service, or shall die while in active

[ 387 Pa. Page 630]

    service, there shall be paid to him or to his executor or administrator, if his service has been terminated by death, from the fund, all dues paid by him into the fund without interest, and all monies which the fund may have received under any assignment made by the said member to the fund at the time of his admission to membership, under the provisions of sub-section (3) of section 8 hereof.". (Emphasis supplied). Decedent, having contributed regularly into the new fund from the time he became a member, attained the superannuation age and served the requisite period of time for pension eligibility in 1944. Despite his pensionable status at that time, he never exercised his right to retire. Thereafter in 1947, while he remained in active service, Section 11 of the Act of 1935, supra, was amended by the Act of June 25, 1947, P.L. 919, § 1, 53 PS § 9454 (P.P.), to read as follows: "When any member of the fund shall resign or be dismissed from service, or shall die while in active service, there shall be paid to him or to his widow, and if no widow survive, to his executor or administrator, if his service has been terminated by death, from the fund, all dues paid by him into the fund without interest, and all monies which the fund may have received under any assignment made by the said member to the fund at the time of his admission to membership ...". (Emphasis supplied).

Shortly after the pensioner's demise in 1955, the plaintiff, Margaret Rupert, his widow, having claimed rights under the 1947 amendment, brought an action in assumpsit against the defendants, Policemen's Relief and Pension Fund of the City of Pittsburgh and Chester B. Morley, its executive secretary, to recover the sum credited to ...


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