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ALLEGHENY COUNTY POLICE PENSION FUND v. ROBERT P. CASEY (08/20/76)

decided: August 20, 1976.

ALLEGHENY COUNTY POLICE PENSION FUND, A CORPORATION, PLAINTIFF
v.
ROBERT P. CASEY, AUDITOR GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA, DEFENDANT



Original jurisdiction in case of Allegheny County Police Pension Fund v. Robert P. Casey, Auditor General of the Commonwealth of Pennsylvania.

COUNSEL

James L. Weisman, with him Weisman, Passafiume, Swartz and Trimm, for plaintiff.

Frank A. Woelfling, Deputy Counsel, with him Frank P. Lawley, Jr., Chief Counsel, for defendant.

President Judge Bowman and Judges Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Crumlish, Jr., did not participate. Opinion by Judge Kramer.

Author: Kramer

[ 26 Pa. Commw. Page 176]

This case is within the Court's original jurisdiction and comes before us on the plaintiff's motion for judgment on the pleadings. The plaintiff, Allegheny County Police Pension Fund, seeks a writ of mandamus compelling the defendant Auditor General to release to the Fund $211,802.01 representing the Fund's allocation of taxes on foreign casualty insurance companies collected for 1975 pursuant to Article IX of the Tax Reform Code of 1971, Act of March 4, 1971, P.L. 6, 72 P.S. § 7901 et seq. The Fund also seeks interest on this amount "from the date of allocation." We will grant the Fund's motion.

In 1974 the Auditor General conducted an audit of the Fund for the calendar year 1973. Upon completion of the audit the Auditor General informed the Fund that, in his opinion, the $5,595.23 expended by the Fund for administrative expenses during 1973*fn1 must be reimbursed to the fund before he could

[ 26 Pa. Commw. Page 177]

    authorize the payment of any state monies to which the Fund was otherwise entitled. As a result of the Auditor General's position, the Fund's 1975 allocation of $211,802.01 has been withheld.

The Auditor General bases his position on Section 2 of the Act of May 12, 1943, P.L. 259 as amended, 72 P.S. § 2263.1a, which provides in pertinent part as follows:

"All monies paid to the treasurer of any . . . county shall be forthwith paid, or credited, to the pension or retirement fund, or the premium on the pension annuity contract, as the case may be, to provide pension retirement or disability benefits for the policemen of such . . . county. . . ." (Emphasis added.)

The Auditor General argues that because administration expenses are not specifically mentioned they must be recovered from some independent source before the Commonwealth pays its share to the Fund. The Auditor General maintains that it is improper for any monies contributed by the Commonwealth to be used for any purpose other than the direct payment of benefits. Under the facts of this case, this argument is without merit.

In order for the Fund to carry out its purpose, it must necessarily incur administrative expenses, and it is reasonable to assume that the Legislature realized this fact when the above-quoted statute was passed. As the Fund points out, no mention of a separate source of money for administrative costs was specified. Indeed, if a private annuity contract is utilized to provide policemen with retirement benefits, the same section of the statute specifically allows the state allocation to be ...


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