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CATHERINE M. MYERS v. COMMONWEALTH PENNSYLVANIA (12/28/84)

decided: December 28, 1984.

CATHERINE M. MYERS, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF THOMAS W. MYERS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, STATE EMPLOYES' RETIREMENT BOARD, RESPONDENT



Appeal from the Order of the State Employes' Retirement Board in the case of Thomas Myers (deceased), SS No. 716-05-7838, dated November 2, 1983.

COUNSEL

Christopher Conners, with him, Glen R. Grell, Shearer, Mette & Woodside, for petitioner.

Nicholas Joseph Marcucci, Assistant Counsel, for respondent.

Judges Rogers, Barry and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Barry. Concurring Opinion by Judge Barbieri.

Author: Barry

[ 86 Pa. Commw. Page 553]

This appeal results from an order of the State Employes' Retirement Board (Board) which denied a request by petitioner, Catherine M. Myers, to alter the retirement contract between the Board and Thomas W. Myers, deceased, thereby entitling petitioner to receive monthly retirement benefits as a survivor annuitant.

Mr. Myers retired from state service in 1978. At that time, he signed a contract with the Board electing the retirement option providing for monthly benefits

[ 86 Pa. Commw. Page 554]

    of $519.33 as long as either he or his wife, Ruth T. Myers, was alive. In 1980, Ruth Myers died. In June of 1981, Mr. Myers married petitioner and shortly thereafter he informed the Board that he wanted petitioner to receive monthly retirement benefits should she survive him. At that time, Mr. Myers was informed that he would have to furnish the Board with a copy of Ruth Myers' death certificate. He was also told that a proof of age document of petitioner would be needed, since retirement benefits are calculated using the ages of the individuals receiving benefits. Mr. Myers was also made aware that because petitioner was young than Ruth Myers, a substantial reduction in monthly benefits would result. Although the Board received a copy of Ruth Myers' death certificate, it was never furnished with any sufficient proof of petitioner's age, despite two requests by the Board dated July 17, 1981, and March 8, 1982.

In January of 1982, Mr. Myers changed an insurance policy and executed a will, naming petitioner as his sole beneficiary. On May 4, 1982, the Board sent Mr. Myers a letter, inquiring about his intention with regard to his retirement contract. A number of telephone communications ensued, during which the Board again requested proof of petitioner's age. Mr. Myers was also informed that if petitioner were the age stated, monthly benefits would be reduced to $268.00. The Board also told Mr. Myers it would send the necessary papers to be completed in order to effectuate the changes.

While the Board sent Mr. Myers a change of beneficiary form, which was completed and returned, the necessary documents to sign a new contract designating petitioner as a survivor annuitant were never sent to the Myers because the required proof of petitioner's age was never furnished to the Board. Mr. Myers died in August of 1982.

[ 86 Pa. Commw. Page 555]

Petitioner requested payment as a survivor annuitant. When the request was denied, a hearing was held in December, 1982, before a hearing examiner, who also denied petitioner's request. The Board affirmed and this appeal followed.

Petitioner advances a number of reasons which she believes should compel a reversal of the Board's order denying the change in the retirement contract. Essentially, she argues that nothing would prevent an oral modification of the contract. She also argues that the Board should be equitably estopped from denying the requested change. Finding no merit to either of the arguments presented, we affirm.

Petitioner first claims that Mr. Myers expressed his intention to the retirement authorities to alter the contract and name petitioner as a survivor annuitant. The Board admits that, while Mr. Myers expressed an intention to make such a change, mere expression of intention is not enough to alter a contract as certain formal acts must be performed before these intended alterations will be given effect. We must, therefore, determine whether the formal requirements of ...


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