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decided: April 14, 1989.


Appeal from the Order of the Public School Employees' Retirement Board in the case of In Re: Ruth W. Burlingame (Deceased), S.S. No. 207-26-0120.


Harold G. Caldwell, Vineski, Brann, Williams, Caldwell & Mott, for petitioner.

Richard D. Michlovitz, for respondent.

Judges Craig, Doyle and Palladino, sitting as a panel of three. President Judge Crumlish, Jr., and Judges Craig, Doyle, Barry, Colins, McGinley and Smith. Opinion by Judge Craig. Dissenting Opinion by Judge Doyle. Judge McGinley joins in this dissent.

Author: Craig

[ 125 Pa. Commw. Page 179]

Before us is an appeal by the Estate of Ruth W. Burlingame (Estate) from an order of the Public School Employees' Retirement Board which denied the request of Amelia Wells, Executrix of the Estate, and Jarvis and Cecelia Burlingame for death benefits.*fn1 The board also denied the Estate's petition to reopen the record.

The board made the following pertinent findings. Mrs. Burlingame was a member of the Pennsylvania State Employees' Retirement System (System) and had thirty-nine years of service with the System at the time of her retirement on June 18, 1976. At various times before her retirement Mrs. Burlingame had written to the System advising it that she wished to change the beneficiary of her accumulated deductions, and each time she was

[ 125 Pa. Commw. Page 180]

    provided with the form which she then completed for that purpose. When she retired, she selected an option (Option 2) under which she would receive a lower monthly retirement payment than under other options, but upon her death the same benefits would then be payable to her survivor annuitant (she nominated her husband as her survivor annuitant). The application for retirement which she received and completed at the time of her retirement advised her that if her "beneficiary" predeceased her, she would have one year to "elect a new beneficiary" and that her monthly allowance would then be recomputed based upon her age and the age and sex of the new beneficiary. Mrs. Burlingame's application was processed and she began to receive benefits. Her husband, who died on May 28, 1984, predeceased her by about six weeks.

As of May of 1984 and up until her death, Mrs. Burlingame's health was failing. She was, however, lucid. During that time Cecelia moved in to care for her. Mrs. Burlingame told Cecelia that she intended to nominate Cecelia and Jarvis, Cecelia's brother, as her new beneficiaries. Mrs. Burlingame, who was their aunt and step-grandmother by marriage as well, secured a change of beneficiary form through communications with a former retirement counselor; the board found that there was no evidence that the form was mailed from the System. Mrs. Burlingame directed Jarvis' wife to complete the form. The board found that Mrs. Burlingame did not know that she would be required to elect one of the System's options to effectuate her intent in addition to completing the form, nor was she aware that such re-election would reduce her monthly annuity.

The nomination of beneficiary form was received by the System on June 28, 1984. On June 29, an employee of the System called Mrs. Burlingame and during the conversation Mrs. Burlingame learned that only one option

[ 125 Pa. Commw. Page 181]

    would benefit Cecelia and Jarvis. On July 11, the System forwarded to Mrs. Burlingame (1) the nomination of beneficiary form she had completed and dated June 25, 1984, (2) an option designation form, and (3) a new nomination of beneficiary form and the letter which explained the various options to her.

The Board also found:

28. The following options were open to Mrs. Burlingame: 'Maximum Option', 'Option 1', 'Option 2', 'Option 3' and 'Special Option'.

29. The 'Special Option' would permit Mrs. Burlingame to develop and individualize a tailor-made plan to effectuate her intentions with the assistance of the System's actuary. This plan could include two or more beneficiaries or survivor annuitants.

30. Under the Maximum Option, Mrs. Burlingame would simply continue to receive the same monthly benefit she had been receiving but would not be able to provide a substantial death benefit for her designated beneficiaries.

31. Under Option 2 Mrs. Burlingame would be able to name one survivor annuitant, subject to certain actuarial restrictions. Mrs. Burlingame would receive a reduced annuity for her life and her survivor annuitant would receive the same amount for the survivor annuitant's life after Mrs. Burlingame's death. The actuarial restrictions would prevent Mrs. Burlingame from reelecting Option 2 in July of 1984 and naming Jarvis or Cecelia survivor annuitant.

32. Under Option 3, Mrs. Burlingame would be able to name one survivor annuitant, subject to certain actuarial restrictions. Mrs. Burlingame

[ 125 Pa. Commw. Page 182]

    would receive a reduced annuity for her life and her survivor annuitant would receive one-half that amount for the survivor annuitant's life after Mrs. Burlingame's death. If Mrs. Burlingame reelected Option 3 in July of 1984 and named Jarvis survivor annuitant her monthly payment would be reduced to $569.53 (gross). If Mrs. Burlingame was to re-elect Option 3 and name Cecelia survivor annuitant her monthly payment would be reduced to $541.80 (gross).

33. Under Option 1, Mrs. Burlingame could select both Jarvis and Cecelia as beneficiaries, and upon her death, they would be entitled to the 'protected amount' of her retirement account.

The board also found that, if Mrs. Burlingame had elected Option 1, her own monthly annuity would have been reduced by approximately $173.00. Unfortunately, Mrs. Burlingame died on July 12, 1984, before receiving the packet of information mailed to her by the System. The board found that Mrs. Burlingame, although she completed a nomination of beneficiary form, had never reelected an option in writing before her death and, hence, all that was due the Estate was a pro rata portion of the annuity check for the last month of her life. Accordingly, it denied the request of Cecelia and Jarvis for benefits pursuant to Option 1. This appeal followed.

On appeal here, we recognize that our scope of review is limited to determining whether the board's necessary findings of fact are supported by substantial evidence and whether it has committed a constitutional violation or an error of law. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.

The determinative issue presented in this appeal is whether a retired employee's designation of new beneficiaries

[ 125 Pa. Commw. Page 183]

    is complete without an express selection of payment option when the newly-named beneficiary designation necessarily can involve only one of the several fixed options.

At the time of her retirement, we note that Mrs. Burlingame selected Option 2, which provided a monthly retirement payment to her, and upon her death, the same amount per month to her husband, Charles E. Burlingame, as a survivor annuitant, until his death.

After her husband subsequently predeceased her, Mrs. Burlingame completed a Nomination of Beneficiaries form naming Jarvis and Cecelia as equal beneficiaries of her retirement account, and mailed the form to the pension system.

Although it is true that the agreement between a retiree and the System is in the nature of a contract, that agreement and the statutory provisions that form it "should be liberally construed to give effect to the intentions of the parties." Bowers v. State Employes' Retirement Board, 29 Pa. Commonwealth Ct. 561, 564, 371 A.2d 1040, 1041 (1977). Within this context, we must examine the facts in this case.

Section 8507(j) of The Public School Employees' Retirement Code provides:

Nomination of beneficiary or survivor annuitant. A member who is eligible and elects to receive a reduced annuity under Option 1, 2, 3, or 4, shall nominate a beneficiary or a survivor annuitant, as the case, may be, by written designation filed with the board at the time of his retirement. A member who has elected Option 1 may change his designated beneficiary at any time. A member having designated a survivor annuitant at the time of retirement shall not be permitted to nominate a new survivor annuitant unless such survivor

[ 125 Pa. Commw. Page 184]

    annuitant predeceases him or unless the member is awarded a divorce or becomes married subsequent to the election of the option. In such cases the annuitant shall have the right to nominate a beneficiary or new survivor annuitant and to have his annuity recomputed to be actuarially equivalent as of the date of recomputation to the annuity in effect immediately prior to the recomputation. In no other case shall a benefit plan be changed by an annuitant. (Emphasis supplied.)

24 Pa. C.S. § 8507(j).

In Myers v. State Employes' Retirement Board, 86 Pa. Commonwealth Ct. 552, 486 A.2d 529 (1984), this court considered an identical provision of the State Employees' Retirement Code,*fn2 and determined that a re-election of a survivor annuitant must be done in writing.

In Myers, a retired employee elected a retirement option under which he or his wife would receive "monthly benefits of $519.33 as long as either he or his wife . . . was alive." Id. at 553-554, 486 A.2d at 530. In 1980, the wife predeceased the retired employee, and he married again. Shortly thereafter, in June 1981, Mr. Myers informed the board that he wanted his new wife to receive monthly retirement benefits should she survive him. At that time the board informed Mr. Myers that he would have to provide the board with a copy of his deceased wife's death certificate as well as a proof-of-age document for his new wife, and that, because his new wife was younger than his former wife, a substantial reduction of benefits would result. Although the board received the death certificate, they never received proof of Mr. Myers' new wife's age, despite two requests by the

[ 125 Pa. Commw. Page 185]

    board dated July 17, 1981, and March 8, 1982. On May 4, 1982, the board sent Mr. Myers a letter inquiring about his intentions regarding his retirement contract. In various telephone conversations, the board again requested a proof of age. The board sent Mr. Myers a change of beneficiary form which Mr. Myers completed and signed. However, because of the failure to provide proof-of-age documents, the board never sent Mr. Myers the necessary documents to sign a new contract designating his new wife as a survivor annuitant. In August of 1982, Mr. Myers died.

The court, in affirming a denial of benefits to the new wife, concluded that, because Myers had never informed the board in writing "of the choice to exercise a new option, we will not permit such a change in the absence of written proof of age and written designation of a substitute survivor annuitant." Myers, 86 Pa. Commonwealth Ct. at 557, 486 A.2d at 532.

The Myers case is not controlling here. In Myers, the retired employee had been repeatedly told over a period of over thirteen months the steps he had to take in order to have his new wife named as the survivor annuitant. More importantly, there is more than one established option to provide benefits to a survivor annuitant ; both Options 2 and 3 provide monthly payments, in different amounts, to a survivor annuitant. Thus, in Myers, a written designation stating which of the options Myers wished to provide for his new wife was indispensable in order to create a new retirement contract.

In this case, Mrs. Burlingame died within 44 days after her husband; yet, in this short time, and despite her failing health, she managed to complete a Nomination of Beneficiaries form. Moreover, unlike the Myers case, Mrs. Burlingame died before she even received the documents that the system sent to her.

[ 125 Pa. Commw. Page 186]

A final and crucial distinction is that, in this case, only one established option, Option 1, existed under which Mrs. Burlingame's grandchildren could be beneficiaries to her retirement account. In the statute defining the options, only Option 1 includes the word "beneficiary".*fn3 Both Options 2 and 3 pertain to a "survivor annuitant".*fn4 The special option, Option 4, 24 Pa. C.S. § 8345(a)(4) also deals primarily with survivor annuities and does not use the word "beneficiary." Thus, by sending the System a form entitled Nomination of Beneficiaries, Mrs. Burlingame, by necessary implication evidenced her selection of Option 1, the only established option which provided for payments to a beneficiary. Moreover, in the packet of documents the System sent to Mrs. Burlingame, the blank Nomination of Beneficiaries form had a yellow card informing her that the Nomination of Beneficiaries form should be completed only if she selected Option 1. Thus, under the System's own procedure, the filing of a Nomination of Beneficiaries form is, in itself, indicative of a selection of Option 1.

Because retirement contracts are to be "liberally construed to effectuate the declared intention of the parties

[ 125 Pa. Commw. Page 187]

    to pay compensation for services rendered in the past", Dom v. State Employes' Retirement Board, 342 Pa. 489, 494, 28 A.2d 796, 798-99 (1942), Mrs. Burlingame's completed Nomination of Beneficiary form, by necessary implication, also constituted a written notice to the System of her intention to elect Option 1, as well as her express designation of new beneficiaries.

The System emphasizes the point that, as the board found, election of Option 1, in connection with the designation of beneficiaries not survivor-annuitants, would have reduced Mrs. Burlingame's own monthly payment, during her life, by about $173.

However, the System does not claim that the execution of the option form would have communicated that point to the pensioner. The contention is that, in further dealings, Mrs. Burlingame would have been "counseled" as to the effect, presumably by oral discussions. Because such counseling -- good administrative practice though it may be -- is not assured by law or by the signing of additional forms, the point cannot be decisive.

Moreover, as the board also found, the original retirement application did counsel the petitioner that election of a new beneficiary, in the event her first beneficiary predeceased her, would involve a recomputation of her monthly allowance. Hence, she had been alerted to the advisability of additional information had she desired to obtain it.

When a pension holder communicates in writing a pension designation which is complete and not capable of differing interpretations, and has been unable, by reason of the intervention of death, to submit all the formal designations on official forms, her sufficient writing should be given effect.

Because the deceased pensioner's written re-designation of her pension was, by necessary implication, full and

[ 125 Pa. Commw. Page 188]

    complete, the System should not be permitted to subject her pension account's substantial beneficiary entitlement of $107,972.26 to what amounts to a forfeiture for lack of an unnecessary additional paper form.

Accordingly, the decision of the board must be reversed and the System directed to pay $107,972.26, plus interest, in equal half-shares, to Cecelia Burlingame and Jarvis Burlingame.


Now, April 14, 1989, the order of the Public School Employees' Retirement Board in the above-captioned matter is hereby reversed.



Dissenting Opinion by Judge Doyle:

I respectfully dissent. The majority holds that the completion of the nomination beneficiary form together with certain parol evidence should be deemed legally sufficient for the Board to determine that an Option 1 designation should be honored. Although I have great sympathy for Cecelia and Jarvis and recognize the tragic circumstances of this case, I must reject the majority's position. I do so for several reasons. First, I believe that the statute's statement that an option designation form be in writing is clear. Second, while Mrs. Burlingame may have wanted to benefit Cecelia and Jarvis, the Board found that she was unaware that in so doing she would have been reducing her own monthly payments. Thus, she was unaware of the consequences of such a nomination.*fn1 And even though she was in failing health, I refuse

[ 125 Pa. Commw. Page 189]

    to assume that she knew her demise was imminent. Indeed, the natural human inclination is probably to the contrary. Third, as a matter of public policy, I believe that allowing oral evidence to establish the intent of the deceased member as to a retirement option would foster litigation and place the System in the impossible situation of attempting to carry out the undocumented wishes of the member while refereeing family disputes. This is not to suggest that there is any animosity present in this case, but a rule of law which can be applied to every case must be established.

The majority contends that only one option existed in which "beneficiaries" could be appointed. I cannot agree. I believe that the special option,*fn2 although it does not

[ 125 Pa. Commw. Page 190]

    use the word "beneficiary," is sufficiently general so as to encompass a situation involving a beneficiary.

I note that the facts in Myers v. State Employes' Retirement Board, 86 Pa. Commonwealth Ct. 552, 486 A.2d 529 (1984), were also somewhat tragic and, contrary to the majority, believe that its holding applies to this case. In Myers the member had named his wife as survivor annuitant. She predeceased him and he remarried. He then advised the State Employees' Retirement Board that he wished to designate his new wife as his survivor annuitant. He was informed that he would have to supply the Board with certain information including his current wife's age. Despite communications with the Board over the course of nearly a year, he failed to submit this information. Upon his death the Board refused to designate the widow as a survivor annuitant and we affirmed stating, "[a]s Mr. Myers never informed the Board of the choice to exercise a new option, we will not permit such a change in the absence of written proof of age and written designation of a substitute survivor annuitant." Id. at 557, 486 A.2d at 532. See generally Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).

Mrs. Burlingame's estate relies upon Dom v. State Employes' Retirement Board, 345 Pa. 489, 28 A.2d 796 (1942), and Hargest v. State Employes' Retirement Board, 79 Pa. D. & C. 549 (1951). In those cases, however, the appropriate forms had been completed and the option selected, and the Board in each case attempted to assert a technical defect (in Dom, the failure to state the date of retirement and in Hargest, the failure to state the date of retirement and the filing of the letter with the Governor rather than the Board) which would have rendered the deceased member's written application ineffective. In both cases the Board's actions were reversed. In

[ 125 Pa. Commw. Page 191]

    this case, however, what was not completed was the basic option selection itself. That choice goes to the core of the member's rights and its absence cannot be viewed as a mere technical noncompliance.

Because of the various reasons I have enumerated, I believe that the Board correctly decided this case and would affirm its order.

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