Etter v. Commonwealth

Dissenting Opinion by

Judge Blatt :

I must respectfully dissent.

Section 404(d) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P. L. (1937) 2897, 43 P.S. §804(d), in providing which pen- and its political subdivisions in the form of poor relief *646sions or annuity payments shall be considered deductible, clearly refers only to “private” plans, noting exceptions for the Federal OASI and Federal Railroad Retirement programs and for those private programs where the employee was the sole contributor. It makes no mention whatever of “public” pension plans, which this claimant’s pension plan clearly appears to be.

It is true, of course, that there is no definition here or elsewhere in the legislation concerned to distinguish between “public” and “private” pension plans, and I have been unable to find any cases on point. It should be noted, however, that, prior to the passage of the Act of September 27, 1971, P. L. 460, which most recently amended Section 404(d), this Act did refer both to private and to public pension plans and it provided that both were to be deductible. Significantly, the word “public” now no longer appears in the section. It might also be noted that, while pensions were originally considered to be allowances paid by the government for valuable services performed or to compensate for a presumed loss sustained in continued public life, only in more recent times have private employers provided pensions to their employees. It would seem safe to assume, therefore, that a “private” pension plan is to be understood as one administered by or on behalf of a private employer, while a “public” pension plan is one administered by or on behalf of a public employer. In such light, it can be understood why the Legislature, while dropping the word “public” in last amending this section, specifically exempted payments received under the Federal OASI and the Federal Railroad Retirement programs. Both of these programs, while administered by the government, are substantially financed by the contributions thereto from private employers and employees. The specific mention of these programs, therefore, could have been intended merely to prevent any confusion as to whether or not they were to be consid*647ered “public” or “private” pension plans. On the other hand, the Legislature may have classed them as “private” pensions, which, along with private plans to which the employee was the sole contributor, would not be considered deductible private pensions. Public pensions, of course, which had formerly been deductible but which the Legislature by the amendment removed from the scope of this section, would no longer be deductible.

The interpretation given to Section 404(d) by the majority completely ignores the distinction between “public” and “private” pensions. Yet it would seem that proper statutory construction would require a comparison of the legislation concerned before and after amendment,1 and in so comparing the omission of the word “public” in the most recent amendment of Section 404(d) with its prior inclusion therein, I am persuaded that the present omission can reasonably be construed to indicate only that such pensions shall no longer be deductible. Even if it should be admitted that the omission of public pension plans in this section may not now appear to have been the wisest course the Legislature could have taken, and in this case I might agree that it was unwise, it is our duty to construe legislation by its plain wording. If the Legislature wishes to correct its enactment, it may; but such correction is not a task for this Court.

The claimant’s Air Force pension was clearly a payment from a “public” pension plan, and certainly no contributions thereto were made by any private employer. Inasmuch, therefore, as Section 404(d) provides as it presently clearly does, the claimant’s Air Force pension benefits should not have been deducted.

Section 1921(c) (5) of the Statutory Construction Act of 1972, Act of December 6, 1972, P. L. , No. 290, 1 Pa.S. §1921(e) (5).