OFFICIAL OPINION No. 31

OFFICIAL OPINION No. 31 Judges-Retirement-SO% limitation of final salary after selection of retirement plan-Section 13 of the State Employes Retirement Law. The 80% limitation contained in subsection (6) of § 13 of the State Employes' Retirement Law, Act of June 27, 1923, P. L. 858, 71 P. S. § 1743, is designed only as a limitation after selection of the plan under which a judge chooses to retire and that it does not apply after computation of the single life annuity and before selection of an option when a judge chooses an optional retirement plan. Harrisburg, Pa., November 1, 1957. Honorable James A. Finnegan, Chairman, State Employes' Retirement Board, Harrisburg, Pennsylvania. Sir: You have asked our opinion with respect to the interpretation and application of subsection (6) of § 13 contained in the Act of July 5, 1957, P. L. 514, amending the State Employes' Retirement Law, the OPINIONS OF THE ATTORNEY GENERAL 141 Act of June 27, 1923, P. L. 858, as amended, 71 P. S. §§ 1711-1758.3. Subsection (6), 71 P. S. § 1743, provides: " ( 6) The annual payments provided for in thi~ act to be paid to any judge shall not exceed eighty per centum of his or her final salary." (Emphasis supplied) Your request for advice is the result of certain questions which have arisen with respect to this subsection. You will note that the pro- visions contained in the subsection were placed in § 13 of the State Employes' Retirement Law, supra. This section refers to the com- putation of superannuation retirement or the single life annuity. Be- cause the language of this subsection was placed in § 13, there is a question as to its application. A contributor, at superannuation, may select either the single life annuity plan under § 13 or an optional plan under § 14. If the contributor selects an option, he will receive a reduced retirement allowance calculated by reducing the single life annuity by amounts representing the factors required to be applied under the particular option. The question now presented is whether the 80% limitation applies after the computation of the single life annuity and before the further reduction required by the option or only after final computation of the actual allowable annual payment. If the 80% limitation is applied after the computation of a single life annuity and before the further reduction required by the option, the contributor, by selecting an option, could never receive 80% of his salary. In the interpretation of statutes, the legislative will is the all im- ·portant or controlling factor. Indeed, the intention of the Legislature constitutes the law. Accordingly, the primary law of construction of statutes is to ascertain and declare the intention of the Legislature and carry such intention into effect to the fullest degree. The intention of the Legislature, when discovered, must prevail and any technical rule of construction is subservient. The Act of May 28, 1937, P. L. 1019, Article IV, § 51, 46 P. S. § 551, known as-the "Statutory Construction Act,'' provides: "The object of all interpretation and construction of laws is to ascertain and effectuate the intention of the Legislature. Every law shall be construed, if possible, to give effect to all its provisions. "When the words of a law are clear and free from all am- biguity, the letter of it is not to be disregarded under the pre- text of pursuing its spirit." (Emphasis supplied) 142 OPINIONS OF THE ATTORNEY GENERAL The courts have clearly stated that the express language of a statute must be the controlling instrument of interpretation. A statute must be construed according to its terms and plain words of a statute cannot be disregarded, particularly where the language is not equivocal and a literal application of the language will not def eat the purpose of the legislation: Commonwealth v. Sun Ray Drug Company, 360 Pa. 230, 61 A. 2d 350 (1948); Commonwealth v. Hallberg, 168 Pa. Super. 596, 81 A. 2d 270 (1951). In construing a statute the Legislature's intention and meaning must primarily be determined from the language of the statute itself; the legislative intent must be ascertained from the words in the statute: Cartwright v. Cartwright, 350 Pa. 638, 40 A. 2d 30 (1944); Bonasi v. Board of Adjustment of Haverford Township, 382 Pa. 307, 115 A. 2d 225 (1955); Pedrick v. Gordin, 382 Pa. 26, 114 A. 2d 124 (1955); Commonwealth v. Przychodski, 177 Pa. Super. 203, 110 A. 2d 737 (1955) . It is well established that in interpreting a legislative enactment each word contained therein must be considered. The Legislature cannot be deemed to have intended that language used in a statute shall be superfluous or without import. Court cannot delete or dis- regard words in a statute. The Legislature must be deemed to have employed words according to their common and approved usage and in doing so it commands the courts to give effect to all provisions of an act: Commonwealth v. Mack Brothers Motor Car Company, 359 Pa. 636, 59 A. 2d 923 (1948) ; Sterling v. City of Philadelphia, 378 Pa. 538, 106 A. 2d 793 (1954); Commonwealth v. One 1939 Cadillac Sedan, 158 Pa. Super. 392, 45 A. 2d 406 (1946); Hickey v. Hickey, 158 Pa. Super. 511, 45 A. 2d 380 (1946); Allentown v. State Public Utility Commission, 173 Pa. Super. 219, 96 A. 2d 157 (1953); In re Borough of Lemoyne, 176 Pa. Super. 38, 107 A. 2d 149 (1954). In the instant case, the language contained in subsection· (6) of § 13, supra, clearly and expressly manifests the intention of the Legis- lature. If we read this subsection alone, its meaning is unquestionable. The Legislature is clearly saying that the annual payments which are to be made to any judge as provided for in this act shall not ex- ceed 80% of his final salary. The legal meaning of the words "act" and "section" are obvious and need not be considered at length. The word "act" has a clear and un- ambiguous meaning. It cannot be ignored or be interpreted to mean section. The Legislature in utilizing the word "act" must be pre- OPINIONS OF THE ATTORNEY GENERAL 143 sumed to have meant that the 80% limitation was to be applied sub- sequent to the selection by a judge of any of the retirement plan choices offered to him in the said act and not only under § 13 thereof. If the Legislature had intended to apply the 80% limitation to the single life annuity or superannuation retirement before the selection of an option, it would not have used the word "act." Whenever § 13 of the State Employes' Retirement Law, supra, has been amended in the past, the amendments thereto were clearly desig- nated as amendments to that section and the language contained in such amendments clearly made that intention manifest: Act of June 21, 1935, P. L. 389; Act of May 18, 1937, P. L. 683; Act of January 19, 1952, P. L. (1951) 2176; Act of March 24, 1956, P. L. (1955) 1341; Act of June 1, 1956, P. L. (1955) 1863. These amendments either limited or expanded the factors which were to be utilized in the com- putation of the single life annuity and the language contained therein clearly limited the application of the provisions of § 13, supra. It is clear that these factors were to be taken into consideration before the option formulas were to be applied. The questions which have arisen as to the interpretation of sub- section (6), supra, arise only because said provision appears in § 13, supra. These questions would have been avoided if the provisions con- tained in subsection (6) had been placed in a separate section. The existence of this drafting error, although unfortunate, cannot have the effect of distorting the clear and express intent of the Legislature. The Statutory Construction Act, Article IV, § 54, supra, 46 P. S. § 554, states as follows: "The title and preamble of a law may be considered in the construction thereof. Provisos shall be construed to limit rather than to extend the operation of the clauses to which they refer. Exceptions expressed in a law shall be construed to exclude all others. The headings prefixed to chapters, articles, sections and other divisions of a law shall not be considered to control but may be used to aid in the construc- tion thereof." (Emphasis supplied) It is clear that where no ambiguity exists in the language of a statute the headings of sections may not be considered in interpreting the pro- visions of the statute. Although little case law exists in Pennsylvania on this subject, it appears clear from the study of that case law and the case law in other jurisdictions that where the language of an act itself is clear and unambiguous, resort may not be had to headings of a section or other subdivisions and a heading or subtitle may not be 144 OPINIONS OF THE ATTORNEY GENERAL used to restrict the scope of a provision which is clear. In Common- wealth v. Evans, 156 Pa. Super. 321, 40 A. 2d 137 (1944), the Court in construing a section of the Election Code, stated that the heading of the section in question was not controlling. In Logan v. Fidelity and C. Company, 146 Mo. 114, 47 S. W. 948, 949 (1898), the Supreme Court of Missouri stated the almost uni- versally accepted law applicable in the construction of statutes and their headings, as follows: "* * * It is the language of the section, and not its arrange- ment in the statute under one title or another, that must first be looked to, to determine its meaning." See also, Pickering v. Arrick, 9 Mackey (D. C.) 169 (1891); People v. O'Neil, 54 Hun. 610, 8 N. Y. Supp. 123 (1889); New York v. Eisler, 2 N. Y. Civ. Pro. Rep. 125 (1882); Collings-Taylor Company v Ameri- can Fidelity Company, 96 Ohio St. 123, 117 N. E. 158 (1917); Ozawa v. The United States, 260 U.S. 178, 43 S. Ct. 65, 67 L. ed. 199 (1922); State v. Linsig, 178 Iowa 484, 159 N. W. 995 (1916); State v. Crothers, 118 Wash. 226, 203 Pac. 74 (1922); Security State Bank v. Aetna Insur- ance Company, 106 Neb. 126, 183 N. W. 92 (1921); In re Chisholm's Will, 176 N. C. 211, 96 S. E. 1031 (1918); Weesner v. Davidson County, 182 N. C. 604, 109 S. E. 863 (1921); Trader v. Jester, 40 Del. 66, 1 A. 2d 609 (1938); Seven Springs Water Company v. Kennedy, 156 Tenn. 1, 299 s. w. 792 (1927). The Statutory Construction Act, Article IV, § 51, supra, 46 P. S. § 551, also states, in part, as follows: "When the words of a law are not explicit, the intention of the Legislature may be ascertained by considering, among other matters-(1) the occasion and necessity for the law; (2) the circumstances under which it was enacted; (3) the mischief to be remedied; (4) the object to be attained; (5) the former law, if any, including other laws upon the same or similar subjects; (6) the consequences of a particular inter- pretation; (7) the contemporaneous Legislative history; and (8) legislative and administrative interpretations of such law." (Emphasis supplied) The occasion and necessity for the subject amendment in question, its object and the consequence of its interpretation are clear. The subsection in question together with the other provisions of the amend- ments to the State Employes' Retirement Law, supra, contained in the Act of July 5, 1957, P. L. 514, were aimed at providing a fair and needed change in our retirement laws with respect to our judges. These OPINIONS OF THE ATTORNEY GENERAL 145 changes embodied in the amendments were initiated in recognition that the acceptances of commissions by judges were often accompanied by a loss of income and fear· of future financial uncertainties. The private law practice abandoned by an able lawyer becoming a judge is not easily, if ever, regained at the termination of his service as a fudge. If we are to ask able lawyers to assume this all important duty, we cannot in turn ask them to suffer the penalties which could, and often do, result from their detachment and severance from the private practice of law. It was believed that the approval of these amendments would induce able lawyers to accept judgeships without fear of future financial uncertainties and that as a result of this the interests of justice would be better served. If then this subsection would be interpreted to restrict the annual pension payments to judges by 80% of their final salary before apply- ing the reducing formulas of the option provisions, the increased con- tributions by judges mandated by these amendments would not only be not beneficial to the older judges with many years of service, but they would, indeed, demand payment by judges of large amounts of money without granting to them corresponding benefits. The necessity for the amendments and the object to be attained thereby would not materialize. The additional costs to the Commonwealth, though perhaps unanticipated, are costs which must be borne because of the legislative mandate. We are of the opinion, therefore, and you are accordingly advised, that (1) the language contained in subsection (6) of § 13 is not to be construed as a limitation to the single life annuity plan unless the single life annuity plan is the one under which a judge chooses to retire, and (2) the limitation contained in said subsection is not to be applied until the Board computes the annual payment to be made to a judge under his chosen retirement plan, whether it be the single life annuity or one of the options. Very truly yours, DEPARTMENT OF JUSTICE, HARRY L. Rossi, Deputy Attorney General. THOMAS D. McBRIDE, Attorney General. 146 OPINIONS OF THE ATTORNEY GENERAL