Appeals, Nos. 106 and 117, Jan. T., 1956, from judgment of Court of Common Pleas No. 5 of Philadelphia County, June T., 1953, No. 10684, in case of Elizabeth H. Shore v. The Bell Telephone Company of Pennsylvania. Judgment reversed; further reargument refused July 16, 1957.
J. B. H. Carter, with him John B. King and Pepper, Bodine, Frick, Scheetz & Hamilton, for defendant.
S. Regen Ginsburg, with him H. P. Abramson and Jay B. Leopold, for plaintiff.
Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ. Initially decided May 21, 1956. Judgment modified, Bell, J. dissenting. Petition for reargument granted September 25, 1956; Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ. Reargued April 24, 1957. Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE BELL
Plaintiff, who was the estranged wife of a deceased employee of defendant, brought a suit in assumpsit to recover additional Sickness Death Benefits under defendant's Plan for Employees' Pensions, Disability Benefits and Death Benefits. The employee died of sickness July 7, 1952. Plaintiff, who was his widow, was not living with him at the time of his death and had not been living with him since October, 1945, but was entitled to support of $20 a week under a court order which she obtained on February 26, 1946. The decedent also left a mother to whom he had been contributing $6 a week. There were no children or other dependent relatives.
Employees' Benefit Committee of the defendant, which is charged with the administration of the Plan, awarded plaintiff a Sickness Death Benefit in the sum of $1,044, representing one year's payment at $20 a week, and awarded to decedent's mother $313.20, representing a year's payment at the rate of $6 a week. Plaintiff-wife claimed there should be awarded to her under Section 7(4)(3) the maximum amount, to wit, $6,180, which would be payable under the Plan to a surviving wife who was living with her employee-husband at the time of his death, and that nothing should be awarded to the employee's mother.
The lower Court reversed the Committee and awarded to plaintiff-wife under Section 7(4)(a) four-fifths of the maximum amount of $6,180, which would be payable under the Plan to a surviving wife who was living with her employee-husband at the time of his death, and
awarded one-fifth thereof to the employee's mother. From the judgment entered sur this order, Bell Telephone Company and plaintiff have each taken an appeal.
Plaintiff-wife has no vested rights, indeed she has no rights of any kind or to any amount, except what she is given under the Plan. Her rights arose, if at all, only upon the death of her husband (decedent-employee), and then only if she proved that the came within the terms and conditions of the Plan. Defendant's Plan has been in existence since 1913 and has always operated in the manner in which it was operated in the instant case. It is noncontributory on the part of the employees, all benefits and pensions being paid by defendant.
The pertinent provisions of defendant's Plan for sickness-death benefits to its employees are as follows: "Section 1. Undertaking. The Bell Telephone Company of Pennsylvania undertakes in accordance with these Regulations,*fn* to provide for the payment of definite amounts to its employees when they are disabled by accident or sickness or when they are retired from service, or, in the event of death, to their dependent relatives. ... Section 3. Committee. 1) There shall be a Committee of five (5) appointed by the Board to serve during its pleasure, which Committee shall be called the Employees' Benefit Committee. This Committee shall be charged with the administration of the Plan. 2) The Committee shall have the specific powers elsewhere herein granted to it and shall have such other powers as may be necessary in order to enable it to administer the Plan. 3) It shall determine conclusively for all parties all questions arising in the administration of the Plan. ...
"4) The persons who may be beneficiaries of the Accident or Sickness Death Benefit or of payments on the death of a pensioner hereunder are limited to the wife (or husband) and the dependent children and other dependent relatives of the deceased. The amount to be paid in each case and the beneficiary or beneficiaries who shall receive the same, and the share which each shall receive, shall be determined by the Committee, subject to the following provisions and to the provisions of Paragraphs 3 and 5 of this Section. (a) ... in the event of death by sickness, the maximum Sickness Death Benefit specified in Paragraph 2 of this Section, shall be paid, subject to the provisions of sub-paragraph (c) of this Paragraph 4, to the wife of the deceased employee if living with him at the time of his death;... If the employee leaves both wife (or husband) and a child or children, as here described, the Committee, in its discretion, may pay the Death Benefit to or for any one or more of such possible beneficiaries in such portions as it may determine.
"b) If there be no beneficiary of the deceased employe as described above in sub-paragraph (a), then, ... in the event of death by sickness, a Sickness Death Benefit in an amount not to exceed the amount specified in Paragraph 2 of this Section, may be paid to any other person or persons who may be beneficiaries, as defined in the first sentence of this Paragraph 4, and be receiving or entitled to receive support from the deceased employee at the time of his death.
"Subject to the limitations expressed in this sub-paragraph (b) the Committee shall have full authority to determine to whom payments shall be made and the amount of the payments, taking into consideration the degree of ...