Dombrowski v. Philadelphia

*225 Dissenting Opinion by

Mr. Justice Cohen:

When lawyers before this Court inaccurately state holdings of cited cases they perform a disservice to the litigants and. the Court, but when a judge misinterprets appellate court decisions he performs a disservice not only to the litigants and the Court, but in addition, to the Bar and more importantly to the law. The majority opinion writer relies upon the case of Retirement Board of Allegheny County v. McGovern, 316 Pa. 161 , 174 Atl. 400 (1934), to support the proposition that “we have consistently entertained mandamus actions brought by a member of a retirement system to enforce statutory commands which would benefit all members of the system.” (Emphasis supplied). One need only read the first paragraph in McGovern to discover the obvious fact that the plaintiff in that case was the Retirement Board of Allegheny County and not an individual member of the retirement system as the majority would have one believe.

In an attempt to answer the contention that McGovern involved an action instituted by the Retirement Board of Allegheny County and not by an individual member of the retirement system, the majority opinion again commits serious errors in analyzing McGovern as it relates to the instant situation. Initially, it must be pointed out that the action in McGovern was instituted by the Retirement Board as an entity and not by individual members thereof against the county commissioners, not individually or as members of the Retirement Board, but rather in their capacity as county commissioners who had the responsibility under the Act in question to appropriate certain moneys then due and owing to the Retirement Board.

Although the Board is a public body clothed with duties of a public nature, the majority still insists that it is a private plaintiff and as such McGovern *226 lends weight to Dombrowski’s right to maintain this mandamus action. The majority reasons that under the Mandamus Act the attorney general or a district attorney of the appropriate county are the only public officials who may institute mandamus actions and hence the Retirement Board unless considered a “beneficially interested person” would also lack the requisite interest necessary to have standing. Therefore, the majority concludes that if the Board had standing in McGovern because it was a “beneficially interested person” without having a vested right to benefits, then certainly Dombrowski who has in the majority’s view a vested right would also have standing as a “beneficially interested person.”

A reading of the Mandamus Act of June 8, 1893, P. L. 345, 12 P.S. §1914, will reveal that the majority to substantiate its position is arguing from a fallacious assumption due to an incorrect interpretation of the statute, i.e., a Retirement Board can only bring an action in mandamus if it were a “beneficially interested person” under §1913 of the Act, since the only public officials who can commence such an action would be the attorney general or a district attorney of the appropriate county. Section 1914 provides: “When the writ is sought to procure the enforcement of a public duty, the proceedings shall be prosecuted in the name of the Commonwealth on the relation of the attorney general: Provided however, That said proceeding, in proper cases, shall be on the relation of the district attorney of the proper county: Provided further, That when said proceeding is sought to enforce a duty affecting a particular public interest of the state, it shall be on the relation of the officer entrusted with the management of such interest. . . .” (Emphasis supplied).

*227 The statute seems clear that in a proceeding seeking to enforce a duty affecting a particular public interest of the state, it shall be commenced on the relation of the officer entrusted with the management of such interest. Here the Retirement Board of Philadelphia County is entrusted with the management of the retirement system and it would be foolhardy to suggest that it would be unqualified under the language of §1914 to file an action of mandamus. Thus, there are several cases which the majority is apparently unaware of, which construe the import of the proviso dealing with mandamus actions commenced by public officials other than the attorney general or the district attorney of the appropriate county. In Commonwealth ex rel. Lafean v. Snyder, 261 Pa. 57 , 104 Atl. 494 (1918), we upheld an action of mandamus commenced by a commissioner of banking against the auditor general and state treasurer to compel them to approve and pay the requisition for salary due him. The defendants argued that the banking commissioner lacked standing under §1914 of the Mandamus Act to bring such a proceeding and that the only proper party plaintiff was the Commonwealth on relation of the attorney general. In rejecting this contention and permitting the banking commissioner to maintain the mandamus action under the proviso of §1914, we stated: “. . . There can be no doubt that the present proceeding is brought to enforce a public duty and also one affecting a public interest, namely, the banking department of the Commonwealth, and therefore is properly brought in the name of the Commonwealth on the relation of the commissioner of banking. While the relator has also a private interest in his salary, yet the payment of his compensation, as well as the payment of other expenses of his office, is a necessary incident to the administration of the affairs of the department, and being paid out of public *228 funds is a matter of public concern, consequently, the duty of the officials having charge of such payment is a public duty. . . .”

The case of Commonwealth ex rel. Bell v. Powell, 249 Pa. 144 , 94 Atl. 746 (1915), sheds additional light on the proper interpretation of this section. Powell concerned an action of mandamus instituted by the attorney general seeking to compel the auditor general to draw his warrant upon the state treasurer, in favor of the National Limestone Company, as was specified in the requisition of the state highway commissioner. The first question raised in Powell was whether the attorney general was the proper person to act as relator in the proceedings or should the action have been commenced on the relation of the state highway commissioner. We held that the attorney general was a proper party plaintiff but not the only proper plaintiff to the exclusion of other public officials, namely, in Powell , the state highway commissioner. In other words, we recognized that an official entrusted with the management of a particular state interest would have standing to institute a mandamus action in addition to and not to the exclusion of the attorney general or the district attorney of the appropriate county. Cf. Stegmaier v. Jones, 203 Pa. 47 , 52 Atl. 56 (1902). Consequently, the standing of the Retirement Board of Allegheny County in McGovern was predicated upon §1914 (as a public officer) and not because the Board was a “beneficially interested person” under §1913. It should also seem obvious that the Board in McGovern was not a “beneficially interested person” in the sense that all the cases heretofore suggest, i.e., it had no pecuniary or financial personal interest other than enforcing its statutory duties and responsibilities to the public. The Board was acting in its public capacity in an attempt to discharge its public functions *229 and by no stretch of the imagination, reason, logic or case authority can it be categorized, as the majority does, as a private plaintiff.

The majority opinion (footnote 13) further indicates that it is not relying upon the numerous cases in which a mandamus action was instituted by a member of a retirement system to compel payment of benefits which were allegedly due and owing to Mm. Despite this disclaimer, I am at a loss to find a single decision cited in the majority opinion which involved a mandamus action commenced by a member of a retirement system who was not presently due benefits under the system. In Davidson v. Beaver Falls Council, 348 Pa. 207 , 34 A. 2d 505 (1943), our Court took the position that Davidson was not yet eligible for benefits from the retirement system since there was no allegation that any funds were then due and owing to him. Therefore, the Court concluded that mandamus will not issue unless the party seeking relief is presently entitled to the funds he is seeking to create. Contrary to the majority opinion, Davidson is not an exception to the rule, but rather has been the rule without exception in this Commonwealth for years with respect to mandamus actions. If Davidson is an exception to a long line of cases suggesting otherwise, why does the majority opinion glaringly fail to cite one authority which has permitted a mandamus action when the individual member of the retirement system did not allege that certain moneys were presently due and owing?

Every case cited by the majority supports the principle that an individual member of a retirement system lacks the requisite interest to institute an action of mandamus unless he can point to some specific present injury which, if demonstrated, would entitle him at that time to relief in the form of certain benefits under the retirement system.

*230 I will attempt to outline briefly, in chronological order, the factual situations in every retirement case cited by the majority for the purpose of demonstrating that in each case there was an allegation in the complaint that the plaintiff, member of the retirement system, was attempting to mandamus the defendant to compel payment of a pension which he was presently entitled to receive. In Haldeman v. Hillegass, 335 Pa. 375 , 6 A. 2d 801 (1939), Haldeman commenced an action of mandamus to compel the Montgomery County Retirement Board to recognise him as a beneficiary-member of the retirement system. This action was instituted after a number of demands were made on the Board and only after the plaintiff had filed a written application to be retired under the Act in question. Simply stated, plaintiff was alleging that he was presently entitled, to a pension which was being unlawfully withheld by the Retirement Board. Baker v. Retirement Board of Allegheny County, 374 Pa. 165 , 97 A. 2d 231 (1953), involved the following factual picture: Baker in 1928, after having terminated 20 years of service as a member of the Police Department of the City of Pittsburgh, applied to the Police Pension Fund Association for certain pension payments. He was awarded the pension and began receiving the benefits as of January 1, 1929. On October 1, 1928, Baker became an employee of the County of Allegheny which employment continued until June 30, 1952, when he retired. He then applied for the county retirement allowance but his application was denied. Thereafter, an amicable action of mandamus was instituted against the Retirement Board to compel the payment of benefits under the retirement system which Baker alleged were presently due and owing to him. Suffice it to say, this is just another case cited by the majority which cannot be said to involve a situation parallel to the instant ease.

*231 Likewise, in Hickey v. Pittsburgh Pension Board, 378 Pa. 300 , 106 A. 2d 233 (1954), an action of mandamus was instituted by an individual member of a retirement system to compel the Pension Board to pay him pension installments which, according to plaintiff’s complaint, were discontinued when he obtained employment with the County of Allegheny. Again there was an allegation that the plaintiff seeking mandamus, if successful, would be entitled to benefits under the system. See Harvey v. Allegheny County Retirement Board, 392 Pa. 421 , 141 A. 2d 197 (1958), and Wright v. Allegheny County Retirement Board, 390 Pa. 75 , 134 A. 2d 231 (1957), both of which involved actions of mandamus by individual members of their respective retirement systems only after they retired and were presently due pension benefits.

The majority opinion relies upon Taylor v. Abernathy, 422 Pa. 629 , 222 A. 2d 863 (1966), for the assertion: “If anything, plaintiff-Taylor’s interest was weaker than that of Dombrowski for, at the time suit was brought, under the existing retirement system Taylor was no longer entitled to any retirement benefits.” On the basis of this reasoning, the majority concludes that if Taylor had standing, then certainly Dombrowski would have standing. Contrary to the majority’s assertion, Taylor’s interest was unquestionably much stronger than Dombrowski’s. Taylor had a present immediate interest inasmuch as he was being denied certain funds which he quite clearly alleged were then due and owing. Here, Dombrowski has yet to suffer any injury other than the theoretical possibility that the City of Philadelphia in the future (1972 or later) might not have sufficient funds to meet their obligation to him. In Taylor the possibility became the reality of the situation, since Taylor was definitely being denied funds which the majority concluded right *232 fully belonged to him. As of tbe time this suit was instituted, tbe City has continued to meet its financial obligations in full under the retirement system and it is merely conjecture or surmise that some day it will not meet these obligations. The time for DombrowsM to complain is not now, but at such time when he is entitled and eligible to receive his pension and the City for some reason or another has failed to make payments in accordance with what the law requires. In Geary v. Allegheny County Retirement Board, 426 Pa. 254 , 231 A. 2d 743 (1967), Geary instituted an action of mandamus to compel the Board to grant his application for a retirement allowance, which he alleged he was presently eligible to receive. The Board defended on the basis that the statute which reduced the required age from sixty to fifty-five was unconstitutional, since it changed the terms of the retirement contracts (discriminatory) and in addition reduced the certainty of payment to the members of the system. In other words, the Board in Geary alleged as a defense basically that which Dombrowski alleges in his complaint, namely, the system is presently actuarily unsound and that the City will not in the future be able to meet its commitments. Our Court, in issuing the writ of mandamus and refusing to consider the actuarial soundness of the system, reasoned that there must be some sort of concrete detriment to the employees rather than a conjectural, theoretical possibility that payments to them will not be met sometime in the future. While the Court did not use the language “standing to sue,” the result reached impliedly leads to the conclusion that an employee would lack the requisite interest for challenging the actuarial soundness until a more concrete detriment existed, i.e., the actual failure of the City to meet its current obligations to him. If the defense of actuarial unsound *233 ness could not be raised by the Retirement Board in Geary , it seems only reasonable to conclude that the question of actuarial unsoundness likewise cannot serve to form the basis of a complaint in mandamus by Dombrowski. It is just as speculative, conjectural, and theoretical that payments will not be forthcoming in the future whether this is a matter of defense or the subject of a complaint. For these reasons, I would hold that Dombrowski lacks the requisite interest in order to have standing to maintain this action of mandamus. However, I do not mean to suggest that other parties would also lack the standing to contest the actuarial soundness of the City’s retirement system, since traditionally certain public officials, as well as the Retirement Board itself, have a sufficient interest in compelling the City to perform its duties to the public.

I dissent.