The opinion
Mr. Justice Frantz
dissenting:
I am unable to concur in the rationale or result of the majority opinion.
In effect, the majority holds that, absent an express charter provision, persons situated as are the plaintiffs have no claim to any part of the moneys they have paid as consideration for contract value never to be received. And the majority further holds that, while plaintiffs have sufficient contractual rights to prevent their pension terms from being adversely altered, their rights are not sufficient to require a refund, if determinable, where they have made payments toward pensions which they will never get.
Completely ignored are three vital questions upon which, in my view, the determination alluded to depends. The first is the extent to which payments made by the plaintiffs were for protection currently received while serving on the police force. This protection can be actuarily valued and is a question of fact. Retirement Board v. McGovern, 316 Pa. 161 , 174 Atl. 400 . If exacted contributions exceeded the value of such protection, the second question concerns that portion of total exactions allocatable to securing a pension. As to these moneys, paid solely for future pensions, the third question left unexamined is whether, as an actuarial necessity, the pension fund’s existence would be endangered or im *479 paired by return of plaintiffs’ contributions. If not, they should be returned.
The problems above posed are extremely difficult questions of fact that must be confronted and resolved before this court can make any sort of meaningful pronouncement governing the rights of the respective parties. Until such findings are before us, we cannot and should not act. Consequently, I would remand the case.
The record reveals reversible error on the part of the trial court in refusing to admit as evidence plaintiffs’ Exhibit “A” and other evidence going to the actuarial basis of the Pension and Relief Fund. As said above, not only was this material and relevant but it possibly could be determinative and should have been admitted.
Mr. Chief Justice. Sutton- authorizes me to say that he joins in this dissent.