Myers v. Commonwealth

Concurring Opinion by

Judge Barbieri:

I concur in the result reached by the majority, but feel obligated to express my disagreement with the acceptance by the majority of one of the Board’s bases for disallowing the claim; failure of decedent to submit more formal proof of Petitioner’s age. I believe that, while the agreement between the retirement system and the retiree is in the nature of a contract, as the majority asserts, nevertheless, that agreement and the statutory provisions that form a part of it “should be liberally construed to give effect to the intentions of the parties,” Bowers v. State Employes’ Retirement Board, 29 Pa. Commonwealth Ct. 561, 564, 371 A.2d 1040, 1041 (1977), and in that light, I cannot justify the Board’s decision that it must deny for lack of that formality decedent’s request for substitution of his second wife, Catherine, as survivor annuitant, since the Board had in hand, in writing,1 an *561adequate communication of the name and age of Catherine. Her name and age were known to the Board as demonstrated in the Board’s letter of May 26, 1982.2 Furthermore, the Board had as of June 9, 1982, the “Nomination of Beneficiary” form, signed by decedent and witnessed, in which Catherine is named as beneficiary and her full name and date of birth are set forth.3

I must agree, however, as the Board has stated, that “the May 26,1982 letter put Mr. Myers on notice that he must make a new option choice ’ ’ if Catherine was to have survivor annuitant status. It should have been clear to decedent from statements in that letter that the Board was unaware of any decision by him to select the option that Petitioner now argues that he did select. Thus, the second paragraph reads in part:

You may change your option to Full Betirement, Option 1, Option 2 or Option 3. The following are the estimated benefits you would be entitled to. Options 2 and 3 are based on a female beneficiary (Catherine) with a birth-date of March 15,1927.

I believe that the Board could properly conclude that the Nomination of Beneficiary form, noted above, on its face a designation of Catherine only as a bene*562ficiary of decedent’s balance, if any, in Ms retirement account, was decedent’s response to the next to last paragraph of the May 26 letter which reads:

If you wish to continue receiving the same monthly amraity without reduction, under the provisions of your present option (Option 2), fill out the enclosed beneficiary form naming the person to receive any portion which may be due of your final retirement check. A reminder — if you were to die without changing options, than [sic] the only benefit payable would be for the number of days you lived in that particular month. No monthly annuity would be due. Also, as at the time of your retirement, an option selection is final and binding.

Since this expressed uncertainty remained unresolved by the decedent until the time of his death, the Board could properly assert that it was unaware of decedent’s intention; whether he would wish to accept a smaller annuity during his lifetime so that his second wife would receive a survivor’s annuity after his death. It is this question which remained unanswered by decedent.

The majority opinion discusses at length the issue of whether or not the substitution of a second wife as a survivor annuitant must be in writing. From my viewpoint, since I believe that the *561telephone designation of Catherine was supplemented in writing, although perhaps informally, I do not reach the statutory interpretation issue dealt with by the majority. I would note, however, that arguably a liberal construction, Bowers, could result, in a conclusion contrary to that of the majority.

The letter is set, forth in, the footnote to the majority opinion.

The Board and the majority stress the importance of Catherine’s age in the annuity recalculation that, must take place, particularly because Catherine is younger than was decedent’s first wife, Ruth. As noted, the Board had the age information, and certainly more formal proofs could have been supplied at any time after Myers’ death without any risk to the retirement system.