Joseph CAMAIONE, Sr., Appellee, v. BOROUGH OF LATROBE, Appellant.
Supreme Court of Pennsylvania.
Decided Dec. 21, 1989.
Reargument Denied Feb. 20, 1990.
567 A.2d 638
Argued Sept. 28, 1989.
Vincent J. Quatrini, Jr., Greensburg, for appellee.
Anthony C. Busillo, II, Harrisburg, for amicus curiae, PA Lodge of the FOP.
Before NIX, C.J., and LARSEN, FLAHERTY, MCDERMOTT, ZAPPALA and PAPADAKOS, JJ.
OPINION OF THE COURT
PAPADAKOS, Justice.
This is the appeal of the Borough of Latrobe (Borough) from the opinion and order of the Commonwealth Court reversing an order of the Court of Common Pleas of Westmoreland County and remanding to that court with instructions that benefits under the Heart and Lung Act1 be restored to Joseph Camaione, Sr., (Appellee) until such time as an evidentiary hearing is conducted to establish whether Appellee‘s temporary disability has ceased. 113 Pa. Cmwlth. 113, 536 A.2d 500.
This arrangement continued until July 27, 1981, when the Borough enacted a Resolution, effective as of September 1, 1981, requiring the retirement of the two oldest рolice officers on the Borough Police Force, one of whom was Appellee. This action was taken pursuant to
Appellee was notified that the Borough was contemplating this аction and that the Resolution was, in fact, enacted. Beginning on September 1, 1981, Appellee‘s regular salary check issued pursuant to the Heart and Lung Act was terminated and he began receiving the worker‘s сompensation check directly as well as a pension check which together totalled more than the salary he had been receiving pursuant to the Heart and Lung Act.
In January, 1983, however, a referеe for the Worker‘s Compensation Board reviewed Appellee‘s disability claim and, following a hearing, determined that Appellee‘s condition was no longer total and that an adjustment to his
As a result of this action, Appellee‘s worker‘s compensation check was terminated and he continued to receive his pension check only. He now wаs receiving each month less than his salary had been. This situation continued for fifteen months when, on May 22, 1984, Appellee filed a complaint in Mandamus seeking to have the Borough restore his full salary under the provisions of the Heart and Lung Act. Appellee reasoned that he was entitled to his full salary as long as his disability was of a temporary nature and that he was never afforded a hearing to establish that a change in his condition had occurred. The trial court denied relief, but the Commonwealth Court reversed holding that Appellee was entitled to notice that his involuntary retirement would affect his rights under the Heart and Lung Act.
In so holding, the Commonwealth Court relied on our decision in Callahan v. Pennsylvania State Police, 494 Pa. 461, 431 A.2d 946 (1981), for the proposition that a police officer‘s status under the Heart and Lung Act could not be changed from temporary disability to permanent disability without a duе process hearing. We accepted the Borough‘s petition for allowance of appeal to examine whether Callahan was properly applied in the situation where a Borough exercises its legislative prerogative under the Borough Code to control the size of its police force because of economic reasons.
When we have had occasion to review the рrovisions of the Heart and Lung Act, we have emphasized that this remedial legislation provides compensation for police who suffer temporary incapacity or disability in the performance оf their work. The guarantee of uninterrupted income during periods of temporary disability has been cited as an attraction for service in the police force and one that
In addition, once it is determined that a policeman qualifies for benefits under the Heart and Lung Act, his disability status cannot be changed from temрorary to permanent unless a due process hearing is afforded. Cunningham v. Pennsylvania State Police, 510 Pa. 74, 507 A.2d 40 (1986); Callahan v. Pennsylvania State Police, 494 Pa. 461, 431 A.2d 946 (1981).
We have also indicated, however, that the benefits of full compensation granted by the Act can be terminated through voluntary retirement and the Commonwealth Court and the Superior Court have both applied the statute in this manner. See, Creighan v. City of Pittsburgh, 389 Pa. 569, 132 A.2d 867 (1957); See also, Hasinecz v. Pennsylvania State Police, 100 Pa. Commonwealth Ct. 622, 515 A.2d 351 (1986) (Court indicated that benefits of act do not extend to former members of police force); and White v. West Norriton Township, 158 Pa. Superior Ct. 375, 45 A.2d 401 (1946) (Court hеld that dismissed police officer could not invoke benefits of the act.)
The other statute that comes into play in this case is the Borough Code which authorizes a borough to reduce its police forсe for reasons of economy.3 This section vests authority in the Borough, as the body responsible for fiscal matters to control the size of its police and fire departments
We have held that an officer who is retired under this section is not entitled to a hearing before the Civil Service Commission since there are no charges motivating the retirement. Kusza v. Maximonis, 363 Pa. 479, 70 A.2d 329 (1950). We have also affirmed the authority of a municipality to enact mandatory retirement legislation as a necessary detail of municipal administration and no appeal lies from such action. In re Wallington‘s Appeal, 390 Pa. 416, 135 A.2d 744 (1957). These cases stand for the proposition that municipalities must have the power to control the orderly and proper functioning of their retirement funds and to react in a responsible manner to еconomic developments because they and they alone are required to raise tax revenues to fund the programs which are determined to be necessary.
The question here presented is whеther Appellee‘s involuntary retirement can be accomplished under this section without a hearing, and if so, whether this retirement can have an effect on his benefits under the Heart and Lung Act. As we have alrеady recited, the Heart and Lung Act provides for continuing compensation during temporary disability for current members of the police force and the Borough Code provides for a non-reviewable involuntary retirement for economic reasons.
The Borough argues that since Appellee does not question that an economic hardship existed when he was retired and that he had the requisite seniority tо be retired, he could be retired under Section 46190 without notice and with no right of appeal. The Borough also argues that the Heart and Lung Act benefits do not confer a property right which supercedes the Borough‘s right to regulate its police complement because of economic hardship. We agree.
The benefits conferred by the Heart and Lung Act do not guarantee lifetime employment. We have carefully reviewed the Heart and Lung Act and conclude that its
There is no indication that this Act confers any rights upon injured officers as to the terms of their employment or that the Act in any way removes the right to hire, fire, furlough or retire which is vested in the Borough under Section 46190. All that the Heart and Lung Act provides is that while an officer is a member of the police force his temporary incapacity status cannot be changed without a due process hearing. This is what Callahan stands for and we will not read it or the Act any broader, for to do so would grant greater rights to injurеd officers than to actively employed officers.
Since the Borough has the sole right under Section 46190 to regulate the size and membership of its police force because of economic сonstraints, it had the right to invoke this section and retire Appellee. That being the case, his retirement removed him from the group of employees covered by the Act. Since Appellee did not have а right to continued membership in the police force different than any other police officer employed by the Borough, there was no property right affected by his retirement. Accordingly, there was nо adjudication which deprived him of a right for which a hearing was required. In re Wallington, 390 Pa. 416, 135 A.2d 744 (1957); Kusza v. Maximonis, 363 Pa. 479, 70 A.2d 329 (1950).
The Order of the Commonwealth Court is reversed and the Order of the Court of Common Pleas is reinstated.
LARSEN, J., files a concurring opinion.
LARSEN, Justice, concurring.
I join the majority opinion, especially in light оf the fact that appellant, the Borough of Latrobe, and appellee, Joseph Camaione, Sr., entered into a stipulation that appellee was retired “[f]or reasons of econоmy, and the necessity to
Notes
Any policeman ... of any Borough ... who is injured in the performance оf his duties ... and by reason thereof is temporarily incapacitated from performing his duties, shall be paid by the municipality, by which he is employed, his full rate of salary, as fixed by Ordinance or Resolution, until the disability arising therefrom has ceased.
If for reasons of economy or other reasons it shall be deemed necessary by any borough to reduce the number of paid employees of the police or fire force, then such borough shall apply the following procedure: (i) if there are any employes eligible for retirement under the terms of any retirement or pension law then such reduction in numbers shall be made by retirement of such employes, starting with the oldest employe and following in order of age respectively.