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EMMA JENE LELIK v. BOROUGH DONORA ET AL. (04/01/81)

decided: April 1, 1981.

EMMA JENE LELIK, APPELLANT
v.
BOROUGH OF DONORA ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Washington County in case of Emma Jene Lelik v. Borough of Donora, Borough of Donora Pension Fund, Managed Investments, Inc., Henry L. Chiesa, d/b/a Managed Insurance Company, d/b/a Managed Insurance Agency and United Life and Accident Insurance Company, No. 272 July Term, 1977.

COUNSEL

Stanford A. Segal, Gatz, Cohen, Segal & Koerner, for appellant.

Charles L. Bell, Jr., with him Milton D. Rosenberg, of Rosenberg, Sewak & Pizzi, and Saul Davis and Robert L. Ceisler, for appellees.

Judges Mencer, Rogers and Palladino, sitting as a panel of three. Opinion by Judge Palladino. This decision was reached prior to the expiration of the term of office of Judge Wilkinson, Jr.

Author: Palladino

[ 58 Pa. Commw. Page 190]

This is an appeal from an order of the court of common pleas which sustained preliminary objections in the nature of demurrers to certain counts of an Amended Complaint in Trespass and Assumpsit filed by Emma Jene Lelik (appellant). We affirm.

Confining ourselves, as we must, to appellant's pleadings and reasonable inferences therefrom, Allstate Insurance Co. v. Fioravanti, 451 Pa. 108, 299 A.2d 585 (1973); Port Authority of Allegheny County v. Division 85, Amalgamated Transit Union, 34 Pa. Commonwealth Ct. 71, 383 A.2d 954 (1978), we note the following facts.

On August 10, 1976, appellant's husband, William Lelik, committed suicide. At the time of his death William Lelik was the Police Chief of the Borough of Donora (Borough) and a 27-year veteran of the Borough police force. As such, he was covered by the provisions of the Borough's police pension ordinance, ordinance 1135.

Ordinance 1135 was enacted by the Borough Council, pursuant to the provisions of the Act of May 29,

[ 58 Pa. Commw. Page 1911956]

(Act),*fn1 on July 5, 1973. It established, inter alia, the Borough of Donora Police Pension Fund (Fund) to finance pension and life insurance benefits for members of the Borough police force. The Fund is under the direction of the Borough Council, Article I, Section 1, but is administered by a pension trust committee which directs the actions of a pension trustee, Article III, Section 1. Article IV, Section 3 of the ordinance states that the pension trustee is empowered to purchase life insurance on the lives of participants in the plan upon the direction of the pension trust committee, and Article VII, Section 2 of the ordinance states that "[t]he death benefit for each Participant under his life insurance policy shall be Twenty Thousand Dollars ($20,000)."

Shortly after the enactment of ordinance 1135 the Fund acquired a $20,000 life insurance policy on the life of Chief Lelik, who subsequently designated appellant as his beneficiary. If this policy had remained in effect at the time of Chief Lelik's death it is undisputed that appellant would have qualified for a $20,000 death benefit. Shortly before Chief Lelik's death, however, this original policy was replaced by a new policy issued by United Life and Accident Insurance Company (United). A clause in this new policy provided that "[i]f the Insured commits suicide, whether sane or insane, within two years from the date of issue, the Company will pay to the Beneficiary, in lieu of all other payments, an amount equal to premiums less ...


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