Yeager Unemployment Compensation Case

Dissenting Opinion by

Flood, J.:

The undisputed facts of this case are that the appellant, formerly an employe of the Atlantic Refining Company, was retired on August 15, 1959, at age 65, *174in accordance with company policy. He received a monthly retirement payment which when prorated was equal to approximately $61.00 weekly. He thereupon applied for unemployment compensation which was allowed on the basis that he was involuntarily unemployed.

The Atlantic Refining Company’s retirement system consists of two distinct elements, an annuity built up entirely by regular contributions by the employe, and a pension contributed entirely by the employer. The following definition in the rules and regulations of the retirement system, offered in evidence as claimant’s Exhibit #1, are pertinent:

(5) “Pension” shall mean payments to a retired member made from funds provided by the Company.

(6) “Annuity” shall mean periodic payments to a retired member or other person made from funds obtained through the accumulation of the member’s contributions.

(7) “Retirement Allowance” shall mean the sum of the pension and the annuity. All retirement allowances shall be paid in monthly installments.

Mr. Rebuck, the company supervisor, testified that the appellant’s retirement allowance from the fund of $266.89 monthly is made up of an annuity of $82.50 and a pension of $184.39. (N.T. p. 14). Upon a weekly basis this would mean, rounded off, an annuity of $19.00 and a benefit of $43.00. The financial reports of the retirement fund to the plaintiff differentiated between the amount disbursed as annuities and the amount disbursed as pensions (Cl. Exhibit #4). . . .

Two points of contact exist between the pension fund and the annuity fund, as indicated by the rules and regulations: (1) joint management and investment of the funds and (2) an annual variation of the company’s contribution, actuarially determined to keep the total payments to the retired employe level throughout *175the years. We have discovered no other interrelation between the pension and the annuity funds except perhaps a death benefit provision as to which there was considerable testimony. This provision was introduced by an amendment in 1951. Although the testimony on this is not too clear, apparently the balance of the employe’s contributions were lost to him prior to 1951, if he died before they were used up in retirement payments. The 1951 Amendment provided that any such balance at his death would be paid to his beneficiary. It was also provided that there should be no reduction in the retirement payments by reason of the adoption of the death benefit provision. This provision necessitated greater annual payments into the retirement fund if it were to be kept actuarially sound. These additional payments were made thereafter entirely by the company to the pension fund. The company supervisor claims that this means that the company contributes the entire death benefit fund. While the claimant disputes it, it appears probably correct. However this may be, the supervisor testified that the actuarial calculation remains the same.

It is to be noted that the 1959 Amendment, set forth in the majority opinion, providing for the deduction does not read “the retirement benefits received by the appellant under a private pension plan to which a base-year employer has contributed”, but rather “that part of a retirement pension or annuity, if any, received by him under a private pension plan to which a base-year employer of such employe has contributed”. This provision of the amendment may be interpreted in either of two ways: It may be read to reduce the weekly benefits provided in the act by (1) that part of a pension or that part of an annuity to which the employer has contributed which exceeds the maximum weekly benefit rate, or (2) that part of the entire pension plan, to any element of which the employer has contributed, which *176exceeds that rate. Under the first interpretation the appellant’s benefits, as provided in the act, of $35.00 weekly would be reduced only by the difference between the $42.00 weekly arising from the employer’s contributions and the $38.00 maximum benefit rate or $4.00. This would reduce the appellant’s weekly benefits from $35.00 to $31.00. Under the second interpretation, which the board followed, and the majority of this court has approved, the reduction would be $23.00 per week, reducing the appellant’s weekly benefits from $35.00 to $12.00.

Since our legislature passes acts without punctuation we are not aided by punctuation inserted after passage. If we add a comma after the word “plan” to the punctuation inserted by the Secretary of the Commonwealth, the first interpretation would be the obvious and natural one. With this additional comma, the provision reads:

(2) that part of a retirement pension or annuity, if any, received by him under a private pension plan, to which a base-year employer of such employe has contributed which is in excess of the maximum weekly benefit rate provided for in this Act.

The punctuation is inserted in the official copy of the laws by the Secretary of the Commonwealth. Act of April 9, 1929, P. L. 177, §804, 71 PS §274. Since it is no part of the legislature’s enactment, it is of no significance in the interpretation of the statute. Statutory Construction Act of May 28, 1937, P. L. 1019, §53, 46 PS §553; Kuntz, to use v. Alliance Sand Co., 156 Pa. Superior Ct. 563, 40 A. 2d 864 (1945).1 If all *177punctuation is eliminated, as it must be for our interpretation under the Statutory Construction Act, there is a definite ambiguity as to wbicb of these meanings is correct. The interpretation, in the case of such ambiguity, turns upon other considerations.

The interpretation given the statute by the majority treats the return of the appellant’s own contribution to the retirement system as though it were compensation received from an employer. In no other law known to us is such return so considered. We cannot accept the hypothesis that the legislature intended, in the ambiguous language of the amendment, to go so far in this direction as the majority opinion takes it.

This is remedial legislation, whose purpose is to ameliorate the hardships to wage-earners due to unemployment and to provide some security against resulting financial distress by the setting aside of reserves by both employe and employer. Unemployment Compensation Law, Act of December 5, 1936, P. L. 2897, Art. I, §3, 43 PS §752. We should therefore be slow to interpret the amendment so as to penalize the em*178ploye who makes a sacrifice to get additional protection upon his retirement.

It is true that retirement benefits are not the objective of the Unemployment Compensation Law. But the employe who is involuntarily retired is entitled to unemployment compensation upon retirement if -he is available for suitable work and fails to obtain it. Smith Unemployment Compensation Case, 190 Pa. Superior Ct. 408, 154 A. 2d 336 (1959). Since he is so entitled, the act should be liberally construed to effect its objectives as to him as well as to all other beneficiaries of its provisions.

It is also true that the employer’s contribution to the private pension plan is .an additional benefit to the retired employe beyond what the employer is required to furnish under the Unemployment Compensation Act. And it seems equitable that unemployment compensation payments charged against the employer’s reserve account should be reduced to the extent that the retired employe is receiving weekly pension payments from the money contributed by the employer to the pension fund. However, we see nothing in the language or policy of the act requiring us in all cases to give the employer the further benefit of a reduction of the charge against his reserve account by not only the fruits of his own contribution to the private retirement plan but of the employe’s contribution as well. This may happen in some cases under the language of the amendment but we see no reason to hold that it should happen where that language does not require it, as here.

The new subsection treats the three most common sources of financial return received by retired employees: (1) retirement plans entered into in connection with employment, (2) social security payments (and their equivalent for railroad employes) including old age pensions, and (3) whatever private plan an in*179dividual might set up for himself. Payments of type three, which would consist entirely of an employe’s capital plus interest thereon, are plainly not deductible from unemployment compensation benefits under the subsection. Neither are payments of type two, social security payments, including old age pension payments, which are derived in part from contributions by the employe and might be considered to some extent a return of his contributions plus interest. This makes it seem to us most unlikely that in type one the legislature, by the ambiguous language of the amendment, intended to reduce his unemployment benefits by that part of the retirement plan payments which represent a return of the employe’s own money, at least when, as here, that part is clearly severable.2

Under our interpretation of the statute $42.00, the approximate sum contributed by the employer to appellant’s pension when prorated on a weekly basis, is the amount from which his maximum weekly benefit rate, $38.00, should be deducted. This leaves a balance of $4.00 which when deducted according to Section 404(d) from appellant’s established weekly benefit rate of $35.00 indicates that the appellant is entitled to unemployment compensation of $31.00 weekly.

The majority seems to believe that the legislative history is contrary to our interpretation. Laying aside “discussion in government circles and in the press” which have not been called to our attention in the briefs or otherwise, we have nothing of record by way of legislative history except the Governor’s message, *180quoted in part by the majority. Nothing in that message, as we read it, or as the majority discuss it, gives the key to the interpretation of the clause before us.

Finally the majority suggest that an insurmountable administrative obstacle, making the act impossible of execution under our interpretation, prevents the court from attributing such an intention to the legislature. However, they understandably stop short of labelling it impossible of execution in the case before us. The majority suggestion of impossibility in other undescribed situations is more imaginative than convincing to one who approaches the interpretation of this statute with reference specifically to the retirement system we are here considering.

Ervin, J., joins in this dissent.

Tbe majority opinion talks as though in tbis search for tbe true meaning of tbis ambiguous statute, tbe minority bas changed tbe punctuation to suit its purposes. Our interpretation would be tbe same, if, as we must assume, there were no punctuation. We have not changed, and need not change, the punctuation in order to reach our conclusion but have inserted the comma in our last quo*177tation from the act merely to clarify our interpretation. Consequently, we are not in any way in conflict with Orlosky v. Haskell, 304 Pa. 57, 155 A. 112 (1931) or People’s Bridge Co. v. Secretary, 355 Pa. 599, 50 A. 2d 499 (1947) cited by the majority. In any event, these cases are irrelevant to this issue because they apply only when the language of the statute is unambiguous. On the contrary, we submit that the majority, insofar as it gives significance to the punctuation inserted by the Secretary, ignores the mandate of Section 553 of the Statutory Construction Act (Act of May 28, 1937, P. L. 1019, §53, 46 PS §553) to the effect that “In no case shall the punctuation of a law control or affect the intention of the Legislature in the enactment thereof”. Even more vigorously do we dissent from the implication in the majority opinion that the legislature may delegate to the executive, in the person of the Secretary of the Commonwealth, either the legislative power to fix the meaning of a statute by punctuation or the judicial power to Interpret a statute by punctuating it.

Cf. the refusal of the Supreme Court to interpret the vacation pay amendment of March 30, 1953, P. L. 6, to cover anything other than vacation periods, partially, at least, upon the theory that this is additional annual compensation for the employe’s services, not to be deducted from unemployment compensation payments due for non-vacation periods. Piesrak Unemployment Compensation Case, 404 Pa. 527, 172 A. 2d 807 (1961).