After much study of the regrettably ambiguous statutory language governing this case, my conclusion is to dissent.
*40I agree with the majority that “in the service” refers to death of a firefighter during the period of his fire department career and does not require that death shall have occurred in the course of employment.
The amendment of Section 4321 of the Code, 53 P.S. §39321, so that it now makes separate reference to a firefighter “killed in the service” in 1960 or later and one “who dies in the service” in 1968 or later, evidences a legislative intention clearly to distinguish the latter phrase from an implicit requirement that death come in the line of duty.
The majority opinion correctly considers the more difficult problem of statutory construction to be whether any death benefit entitlement can accrue to a widow whose decedent was not eligible for pension at the time of death.
The language of Section 4322(a) of the Code, 53 P.S. §39322(a), giving a firefighter’s widow the amount . . . which would have been payable had he been retired at the time of his death. . . . confronts us with ambiguity.
The specific issue is whether that passage (1) assumes retirement status only for the purpose of establishing the amount of payment to a widow, for death at any point in her spouse’s career, or (2) assumes retirement status to indicate that death benefits to a widow are conditioned upon the decedent having been actually eligible for pension; i.e., that, even though still employed, the decedent shall have attained the required minimum number of years of service and the required minimum age, as specified by pension regulations adopted under Section 4321, 53 P.S. §39321, here Section 149.06 of the Codified Ordinances of the City of Easton.
Careful study of all of the sections of the Act leads me to conclude that actual eligibility for pension is not required, particularly because the statutory pas*41sagé in question clearly expresses an assumption of retirement and refers to amount. It simply does not state that eligibility for pension is a prerequisite of payment to widows of firefighters who die in the service.
The majority opinion reads into Section 4322(a) an eligibility requirement which , simply is not there. The section gives the widow an amount which is — -just as the majority opinion states it — “what the member would have received if he had retired as of the date of his death.” (Emphasis added.) Retirement, and therefore eligibility for retirement, is assumed.
That interpretation finds confirmation in Section 4327, 53 P.S. §39327, which reads:
Section 4327. Repayment Before Retirement. — If for any cause any member of the fire department contributing to the pension fund shall cease to be a member of the fire department before he becomes entitled to a pension, the total amount of the contributions paid into the pension fund by such member shall be refunded to him in full without interest. ... In the event of the death of a member of the fire department not in the line of service before the member becomes entitled to the pension aforesaid and such member is not survived by a widow or family entitled to payment as hereinbefore provided, the total amount of contributions paid into the pension fund by the member shall be paid over to his estate.
This Section 4327 is very significant because it specifically contemplates the situation before us, the death of a “member in the fire department” (in the service) but “not in the line of service” (not on duty) before pension entitlement. If a widow in such a situation were not entitled to the death benefit as the “payment as hereinbefore provided,” there would be *42a provision, in a preceding part of Section 4327 or in a preceding section, stating that the widow or family receives only a refund of the member’s contributions. However, there is no such preceding provision. The only preceding provisions are those which provide for benefit payments (not contribution refunds) to families and widows, in Sections 4320, 4321 and 4322 (53 P.S. §§39320, 39321, 39322).
The fallacy of the majority opinion is made clear by the fact that no section of the Act whatsoever expresses the idea that the widow of a pension-ineligible firefighter gets only his contributions. The majority opinion inconsistently attributes that idea to two different sections, saying:
If, at that time [death], he does not meet the age and service . . . then he, and through him his widow, is entitled only to his contributions to the pension fund pursuant to Section 4327----
but then, in a footnote,
If he is not survived by a widow who is eligible for his contributions under Section 4322 (a), then his contributions are to be paid to his estate.
Which is it? Section 4327 or 4322(a) ?
Actually, neither one of those sections — or any other section — states that the widow of a pension-ineligible member gets only contributions. Section 4322 (a) — the section at issue — mentions only retirement payment amount (which- is why the majority must read the eligibility requirement into it) and hence a widow’s entitlement to .contributions cannot be found in that, section.
' Section 4327, 53 P.S. §39327, begins with the statement that if a member ceases to be a member for any cause, “the total amount of the contributions paid into the pension fund by such member shall be refunded to him in full without.interest.”.-.If that sentence *43is intended to imply, payment of contributions to tbe non-pension-eligible decedent’s estate (as tbe majority says, “. . . tben he, and tbrougb him bis widow, is entitled only to bis contributions . . . pursuant to Section 4327),” tben why would tbe last sentence of that same section redundantly provide that tbe contributions of a non-pension-eligible decedent not survived by widow or family be paid to bis estate? We thus come back to tbe fact that tbe last sentence provides for payment of contributions to an estate only if tbe member is not survived by a widow (or family) entitled to benefits payments, which are tbe only ones “hereinbefore provided” for widows or families. In other words, it would not make sense to provide for refund of contributions to an estate in absence of a widow if tbe intent were to indicate that a widow in existence receives tbe contribution refund tbrougb tbe estate.
Provisions in two other sections, although not conclusive in themselves, are consistent with our interpretation of tbe questioned passage.
Section 4321, 53 P.S. §39321, in its last sentence provides that:
Upon tbe death of a member who retires on pension or is killed in tbe service'on or after January 1, 1960, or who dies in tbe service on or after January 1, 1968, payments as hereinafter provided shall be made to bis widow during her life so long as she does not remarry.
If tbe payments “hereinafter provided” include both pension payments to the pension-eligible member’s widow and refund of contributions to tbe ineligible member’s widow, then it is impossible' to understand tbe overall mandate for lifetime payments to tbe widow, when a refund of contributions is a lump-sum payment by nature, not subject to reduction for remarriage or enlargement for longevity. ■ - ■ > • - ' /
*44Also consistent with our interpretation of the questioned passage is Section 4324, 53 P.S. §39324, which expressly permits the funding ceiling of 3% of all city taxes to be exceeded “if an additional amount is deemed necessary to provide sufficient funds for payments to widows of members retired on pension or killed or who die in the service. ...”
Finally, it is noteworthy that, throughout the statute, the situation of those who die in service is now treated together with those killed in line of duty. Pension-amount payment to the widows of the latter class of decedent members, even if not pension-eligible, is easier to accept; yet, as occurs particularly in Section 4322(a), the same amount-payable phrase simultaneously applies to both classes of decedents.
I would therefore reverse the order below and remand for computation of benefits to be paid to claimant by applying the statutory assumption that claimant’s decedent was retired at the time of his death. Judge Rogers joins in this dissent.