No. 473 January Term, 1979, Appeal form the Order of the Court of Common Pleas of the Third Judicial District, at No. 283 April Term, 1977 and the Order of the Commonwealth Court of Pennsylvania at No. 1777 C.D. 1977, entered July 5, 1979.
Joel M. Scheer, Easton, for appellant.
Herbert V. Giobbi, Asst. City Sol., for appellee.
O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Nix, J., files a Dissenting Opinion in which O'Brien, C.j., and Hutchinson, J., join.
This case raises the issue whether, under Section 4321 of the Third Class City Code (Code), any pension benefit entitlement can accrue to the widow of a firefighter who was not eligible for a pension at the time of his death, where the death was not job-related.
Appellant, Louise Stanton, is the widow of William G. Stanton, an employee of the City of Easton Fire Department, who died on July 16, 1974 in an accident that was not job-related. Prior to his death, Mr. Stanton had been employed by the fire department for four years, and was not yet entitled to pension benefits inasmuch as he had satisfied neither the service nor age requirements of the pension plan. The Commonwealth Court affirmed the denial of Mrs. Stanton's claim for pension benefits and this appeal followed.*fn1 For the reasons that follow, we reverse.
Appellee, City of Easton, contends pension benefits to widows are derivative and, thus, since appellant's decedent was ineligible to receive pension benefits, appellant is, likewise, ineligible. We disagree. The statutory scheme clearly indicates the legislature has conferred on appellant an independent right to a pension.
The Code, Act of June 23, 1931, P.L. 932, as amended
by the Act of July 20, 1968, P.L. 434, No. 204,*fn2 provides several indicators of the legislature's intent to benefit firefighters' widows and orphans. First, prior to the 1968 amendment, Section 4321 of the Code provided for payments to widows of members retired on pension or killed in the service on or after January 1, 1960, only if council elected to pay. Section 4321, as amended in 1968, removed council's elective function and mandated payments to widows as follows:
Upon the death of a member who retires on pension or is killed in the service on or after January 1, 1960, or who dies in the service on or after January 1, 1968, payments as hereinafter provided shall be made to his widow during her life so long as she does not remarry.
Id., § 2. (Emphasis added). Secondly, the preamble to the 1968 amendment states as one of its purposes "that payments to widows and children under certain conditions shall be mandatory."*fn3 Thirdly, Section 4320 authorizes establishment of firemen's pension funds for the benefit of three classes of persons: " such members of the fire department as shall receive honorable discharge therefrom by reason of service or age or disability,  widows of retired members and  the families of such as may be killed or who die in the service." Id., § 1. (Emphasis added). Clearly, protection of the surviving spouse was one ...