Yeager Unemployment Compensation Case

Opinion by

Woodside, J.,

This case involves the amount of unemployment compensation due a claimant who is unemployed because he was involuntarily retired in accordance with his employer’s policy.

Harry N. Yeager, the claimant, was employed by The Atlantic Refining Co. for 41 years until August 19, 1959, when he was retired because he had attained the age of 65. Immediately prior to his retirement, he had been receiving wages of $140.40 a week.

The claimant had been a member of the Employes’ Retirement System of The Atlantic Refining Company since its formation in 1927. Upon retirement, he chose an option which provides him a pension for life payable in the amount of $266.89 monthly. The claimant’s monthly pension checks are drawn on an account to which both he and his base year employer contributed. The weekly pension, calculated from the monthly payments according to the statutory formula, was found by the board to be $61.

After the claimant’s retirement, he applied for and received unemployment compensation in an amount over which there was no dispute until after January 1, 1960, the effective date of an amendment to the Unemployment Compensation Law which was applied by the *165 bureau, to the claims made by Yeager for the weeks following that date.

The amendment was made to section 404(d) by the Act of December 17, 1959, P. L. 1893, 1911, 1912. Section 404(d), supra, 43 P.S. §804(d), with the language added by the 1959 amendment in italics, now reads as follows: “(d) Notwithstanding any other provisions of this section, each eligible employe who is unemployed with respect to any week ending subsequent to the first day of January, one thousand nine hundred sixty, shall be paid with respect to such week compensation in an amount equal to his weekly benefit rate less the total of (1) that part of the remuneration, if any, paid or payable to him with respect to such week which is in excess of his partial benefit credit, and also (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. If such retirement pension or annuity payments deductible under the provisions of this subsection are received on other than a weekly basis, the amount thereof shall be allocated and prorated in accordance with the rules and regulations of the department. Retirement pension or annuity payments received by the employe under the Federal OASI program, the Federal Railroad Retirement program or under any private retirement plan to which the employe was the sole contributor, shall not be considered a deductible retirement pension or annuity payment for the purposes of this subsection. Such compensation, if not a multiple of one dollar ($1.00), shall be computed to the next higher multiple of one dollar ($1.00).”

Applying the above provision, the bureau, the referee and the board each held the claimant to be entitled to benefits in the amount of $12 per week. The board explained the calculation as follows:

*166 “The maximum weekly benefit rate of $38.00 provided for in the Act when deducted from the claimant’s weekly pension in accordance with the aforesaid formula leaves a balance of $23.00. Further following the mandate of Section 404(d) of the Law the said sum of $23.00 must be deducted from the claimant’s established weekly benefit rate of $35.00. Continuing to follow the aforesaid formula, the sum of $23.00 when deducted from the claimant’s weekly benefit rate of $35.00 leaves a balance of $12.00. Therefore, under the provisions of Section 404(d) of the Law, the claimant is entitled to a weekly benefit amount of $12.00.”

The claimant appealed from the board’s decision contending that there was error in the board’s findings three and four which were as follows: “3. The claimant was receiving pension from his base year employer in the amount of $266.89 per month. 4. The claimant’s pension payments are made from a fund to which both he and his base year employer contributed.”

Finding number three is not accurately stated in ■that the claimant is not receiving his pension directly from the employer but from a private pension plan which is associated with The Atlantic Refining Company, and to which the company contributes. The employer and the pension system are different entities, but that is not important here. The evidence supports the finding that the pension payments, which the claimant is receiving, are made from a fund to which both he and his base year employer contributed.

The claimant argues that the $266.89 which he is now receiving is merely a return of his own money, ¿nd, therefore, his employer made no contribution to the pension which he received during the weeks in question. During the time of his employment, Yeager paid into the retirement plan $5,851.98, which, by. adding interest on his balance compounded annually to the time of retirement, equalled the sum of $9,504.44. The claimant *167 argues that until he receives this sum from the system through his monthly installments, his employer has not contributed to his retirement.

We all agree that his position is untenable. He relies upon the Internal Revenue Code of 1954, §72 (d) whereunder, in circumstances such as exist here, no income tax need be paid upon the retirement allowance received during the first three years until the payments received by the retired employe total the full amount contributed by him. This provision of the Revenue Act is applicable only when the aggregate amount receivable by the employe in the first three years is equal to or greater than the amount contributed by the employe. It does not mean that the payments received by the appellant constitute a return of his own funds until the sum which he contributed is exhausted. It is an arbitrary exception to §72(b) of the Internal Revenue Code which establishes a formula based upon the taxpayer’s contribution to the fund from which the pension is paid.

Upon the death of retirer, his beneficiary or estate would be paid a sum obtained by subtracting the aggregate of all retirement allowances paid to the date of death from his total contribution with interest to the date of retirement. This provision was added to the system January 1, 1951, and appears to constitute an additional liability of the employer, inasmuch as the claimant’s monthly allowance does not appear to be actuarily reduced to provide the necessary money for the additional liability placed upon the total retirement fund. The appellant argues that this provision supports his position that all of the allowance which he is now receiving constitutes the return of his own money. This provision does not strengthen the appellant’s position, but merely emphasizes that the system must be dealt with as a whole. When this is done there is no doubt that he is receiving retirement pay *168 ments from a private pension plan to which his base year employer contributed.

To further support his position, claimant points to the annual report of the trustees of the system which contains four .accounts included among which is an “Annuity Savings Account (Savings and interest of present members)”.

The Rules, and Regulations of the Employees’ Retirement System of The Atlantic Refining Company provide for a retirement allowance which the appellant is receiving by a single check payable each month out of one fund. Both the employer and the employe have contributed to this fund. For accounting purposes, it is necessary to keep this total fund divided into separate accounts. The “allowance” is made up of an “annuity” calculated on the basis of the employee’s contribution and a “pension” based upon his service and salary. Together they constitute a private pension plan to which his employer has contributed.

The retirement allowance of $61 per week is received by him under a private pension plan to which his base year employer has contributed. There is no justification in fact or in law to conclude that the claimant was the sole contributor to the fund from which he is receiving his monthly retirement allowance, or to assume that the legislature intended that all retirement payments be considered to have been made from the employe’s contributions until they are exhausted, and that thereafter all such payments should be considered to have been made from the employer’s contribution. Such an interpretation would, for practical purposes, nullify the amendment, as the claimant’s funds under all systems would practically always cover the period for which unemployment compensation would be payable.

Although we are unanimously of the opinion that the claimant’s contention is not tenable, the minority *169 of this Court has advanced a new concept of the amendment to section 404(d), supra. The minority has taken upon itself the function of repunctuating the amendment in order that it can be given a meaning which differs from that applied by the bureau, the referee and the board, and from that suggested by either the claimant or the employer. As far as we can determine, it has never before been suggested by anyone. The minority inserts a comma in section 404(d), supra, after “plan,” and another comma after “contributed,” and then concludes that the reduction of the compensation shall be only that percentage of a retirement pension or annuity which the employer contributed.

Although acts are passed without punctuation, and the punctuation which is subsequently inserted by the Secretary of the Commonwealth may be ignored, the courts should not change the punctuation of a statute in order to give it a different meaning. The Peoples Bridge Co. v. Secretary of Highways, 58 Dauphin 25, 41, affirmed in 355 Pa. 599, 50 A. 2d 499 (1947); Orlosky v. Haskell, 304 Pa. 57, 62, 63, 155 A. 112 (1931). The legislature imposed the duty of punctuating its statutes upon the Secretary of the Commonwealth, and not upon the courts. See Act of April 9, 1929, P. L. 177, §804, 71 P.S. §274. (See also Act of May 4, 1905, P. L. 384, repealed.)

The Secretary of the Commonwealth has access to information, such as the punctuation in the hill when it was introduced, the punctuation which may have been in any amendments made to the bill during passage and the Attorney General’s report on the bill submitted to the Governor prior to his action on it, which are helpful in properly punctuating an act, and, of course, there is a presumption that an officer properly performs his duty.

It will be enlightening and possibly helpful to consider the circumstances under which the amendment *170 to §404(d) was made. The right to unemployment compensation for claimants separated for retirement reasons has been subject to much litigation and public discussion in recent years. The law is settled that an employe who voluntarily retires is not entitled to unemployment compensation. Campbell Unemployment Compensation Case, 180 Pa. Superior Ct. 74, 117 A. 799 (1955). Where retirement was brought about by arriving at a compulsory retirement age contained in a collective bargaining agreement or by company policy known to the retirer at the time of employment, the retirement was held to be voluntary and the retirer was denied unemployment compensation. These holdings were questioned in Gianfelice Unemployment Compensation Case, 396 Pa. 545, 153 A. 2d 906 (1959), where it was held that an employe who desires to continue in his employment but who is retired for age, in accordance with the terms of a company pension plan which is part of a collective bargaining agreement is eligible for unemployment compensation. The Court further held that “nothing in the Unemployment Compensation Law disqualifies a recipient of a pension from receiving unemployment compensation if otherwise eligible.” This holding increased the number of pensioners qualified for unemployment compensation and intensified the discussions which were taking place in the press and in governmental circles concerning the advisability of paying unemployment compensation to a retirer who was already receiving social security benefits and pension from a private retirement plan. Cases were being cited where the private pension payments, social security benefits and unemployment compensation combined exceeded the wages which a retirer had been receiving when employed. This matter was receiving serious consideration by the Governor’s Committee on Unemployment Compensation which filed its report the same week that the Supreme Court filed its opinion in the Gianfelice case, supra.

*171 The Governor’s Committee reported that some of its members believed that all pensioners should be declared ineligible for unemployment compensation benefits, because their retirement indicated separation from the labor force. “Other members believed that the law should be amended to limit the weekly benefit amount to which such a claimant would be eligible by use of an offset so constructed that, if such a claimant received a monthly pension payment equal to 4 1/8 times the maximum weekly unemployment benefit, he would be ineligible for any unemployment benefit payment.” This statement it will be noted, made no reference to the source of the “monthly pension payment.” The committee’s report continues, “It was also proposed that any claimant recéiving a private pension to which his base year employer contributed, which exceeds 4 1/3 times the maximum weekly benefit amount provided by law, shall be ineligible for some or all weekly benefits by offsetting from his weekly benefits the amount of his private pension in excess of 4 1/3 times the weekly benefit amount.”

Shortly after this report was released and copies furnished to the legislators, H.B. 2338 was introduced. This bill became the Act of December 17, 1959, P. L. 1893, supra. We submit that the legislature accepted the most “liberal” suggestion of the committee’s report, and was attempting to carry it out by the amendment to section 404(d). So far as we have been able to ascertain there was never any suggestion or discussion by the Governor’s Committee or the legislature to separate a pension into that amount representing the contribution made by the employer and .that amount representing the contribution made by the employe. A reading of the Committee’s report leads to a conclusion that such a division of a pension payment is repugnant to all of their divergent views.

*172 The historical background is not controlling, but it may be considered by us. Statutory Construction Act of May 28, 1937, P. L. 1019, §51, 46 P.S. §551.

It seems clear for another reason that the legislature did not contemplate or intend the interpretation placed upon the amendment by the minority. Were we to interpret §404(d) as suggested by the minority, it would create an insurmountable administrative obstacle, and would be impossible of execution. There are thousands of pension plans within this Commonwealth to which employers contribute. They follow no uniform policy or system. They cover from one to a hundred thousand employes. These plans are not only different, but they are involved and complicated. The evidence and argument in this case demonstrate that a lawyer, an accountant and an actuary working together find it difficult to determine accurately what percentage of the payments made from the pension plan represents contributions by the particular claimant and what percentage represents contributions made by the employer.

It would be far less difficult in this case than in most cases to separate the percentage of a pension which represents the pensioner’s contribution and the amount which represents his employer’s contribution because of the manner in which the system is set up. But even this case is not free from doubt. Although there was testimony here by an expert familiar with the plan that of the $266.89 monthly retirement, $82.50 represented the amount contributed by Yeager, and $184.39 represents the amount contributed by the employer, this ignores, as to both amounts, a liability, of the system to provide sufficient funds to provide for the payment to the retirer’s estate or beneficiary referred to above. Ordinarily, an actuary would provide this sum by reducing the amount of monthly allowances. It is at least a judiciable question whether the *173 employer is contributing to that part of the annuity of $82.50 which would equal the sum by which the annuity should be reduced to provide for the payments to the beneficiary or estate of the retirer.

This is typical of the unlimited number of questions which would arise under each of the thousands of retirement systems. These questions would not be confined to the cases appealed to the board, where expert witnesses can be called to testify. In the case of each retirer claiming compensation, a clerk of the bureau would be required to examine the retirement plan (this one involves 40 pages of “fine print”), and decide what percentage of the retirement payments represented contributions from the employe, and what percentage represented contributions from the employer. This is not only a mathematical or accounting problem but an actuarial problem loaded with an unlimited number of legal problems involving the interpretation of the particular retirement plan under which the claimant is receiving a pension. There are only a handful of specialists in the Commonwealth who understand the process by which such a determination can be made. It is inconceivable that the legislature would impose such a duty upon the clerks of the bureau. The legislature does not intend a result that is impossible of execution. Act of M!ay 28, 1937, P. L. 1019, §52, 46 P.S. §552. “In construing any act which requires construction ‘good sense and practical utility’ are always to be considered: 1 Kent 310.” Pottsville Referendum Case, 363 Pa. 460, 467, 70 A. 2d 651 (1950).

Decision affirmed.