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12/02/97 GREGORY DALE v. PHILADELPHIA BOARD

December 2, 1997

GREGORY DALE, MATTHEW DALE AND ROSEMARY DALE, PARENT AND NATURAL GUARDIAN OF MAUREEN DALE, APPELLANTS
v.
PHILADELPHIA BOARD OF PENSIONS AND RETIREMENT



Appealed From No. 0098 July Term, 1996. Common Pleas Court of the County of Philadelphia. Judge LEVIN.

Before: Honorable Joseph T. Doyle, Judge, Honorable Jim Flaherty, Judge, Honorable Jess S. Jiuliante, Senior Judge. Opinion BY Judge Flaherty.

The opinion of the court was delivered by: Flaherty

OPINION BY JUDGE FLAHERTY

FILED: December 2, 1997

Maureen Dale, by her parent and natural guardian Rosemary Dale, and Gregory Dale, and Matthew Dale (Children) appeal from an order of the Court of Common Pleas of Philadelphia County, which affirmed a decision of the Philadelphia Board of Pensions and Retirement (Board) which denied the Children's applications for ordinary death benefits of the deceased, Roy Dale, (Roy) but granted the application for benefits filed by Roy's widow, Celeste Dale (Celeste). We affirm.

Roy died as an active duty Philadelphia police officer on May 13, 1995. At the time of his death, Roy and the intervenor, Celeste were married. Before his marriage to Celeste on October 18, 1985, Roy executed a change of beneficiary designation on July 3, 1985, naming his mother and the Children as the beneficiary of his ordinary death benefits. The original of the change of pension beneficiary was filed, and is in the possession of the Board.

Pursuant to the change of beneficiary designation, the Children made an application for their designated lifetime monthly ordinary death benefits. Celeste also made an application for ordinary death benefits. There is no record in the Board's files of any change of beneficiary designation made by Roy which names Celeste as the sole beneficiary. However, Celeste supported her application with an affidavit stating that she and Roy completed change of beneficiary forms on May 9, 1986, whereby each named the other beneficiary of their pensions.

The Board thereafter conducted a hearing. At the hearing, Celeste testified that she was present when Roy executed the July 3, 1985 change of beneficiary form listing Children as his beneficiaries. She stated that in July, 1985, she and Roy had yet to be married but were engaged at the time. Together, they had gone to Lodge 5 of the Fraternal Order of Police (FOP), to remove their ex-spouses' names as beneficiary. Because Celeste and Roy were not yet married, they were not permitted to name each other as the beneficiary of their respective pensions. As such, Celeste testified that Roy changed the beneficiary designation from his ex-spouse to his mother and the Children, pending his marriage to her.

After their marriage, Celeste testified that she and Roy went to the FOP on May 9, 1986, where each of them completed forms to change the beneficiary designation of their pension benefits naming each other as beneficiary. Celeste and Roy gave their completed paperwork to Diane Doyle. Doyle kept the original and provided one photocopy to each of them. Doyle, in her affidavit, stated that the photocopy produced by Celeste was the same type of form used by the FOP in 1986. It was the policy of the FOP to send the original to the Board.

Celeste also presented a photocopy of the change of beneficiary signed by Roy, naming her as beneficiary of his pension benefits on May 9, 1986, and a photocopy of the change in beneficiary form she signed that same day naming Roy as the beneficiary of her pension. In addition, Celeste presented the affidavits of various people who stated that Roy told them that he had changed his beneficiary to Celeste.

After reviewing all of the evidence, the Board found that the testimony of Celeste was credible and that the signature on the May 9, 1986 change of beneficiary form was in fact that of her deceased husband, Roy. Although the Board did not have this change of beneficiary form in its files, it determined that Roy substantially complied with the policy requirements, and awarded ordinary death benefits to Celeste and denied the applications of the Children. On appeal, the trial court affirmed and this appeal followed.

The issues in this case are whether the Board and trial court committed an error of law by not strictly interpreting Philadelphia Municipal Retirement System Ordinance Section 214, which requires a change of beneficiary form to be filed with the Board and awarding ordinary death benefits to an individual not named on a change of beneficiary form filed with the Board and whether the Board's findings of fact are supported by substantial evidence.

This court's review of an administrative agency adjudication is limited to determining whether the local agency abused its discretion, committed an error of law, violated a party's constitutional rights and whether substantial evidence supports the agency's findings. Board of Pensions and Retirement v. Schwartz, 97 Pa. Commw. 539, 510 A.2d 835 (Pa. Commw. 1986).

The Philadelphia Municipal Retirement System Ordinance (Ordinance) governs the conditions upon which ordinary death benefits become payable. Section 210.2 of the Ordinance provides that "ordinary death benefits shall be paid to the beneficiary as provided in Section 214 ...


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