389 Pa. 569 | Pa. | 1957
Opinion by
Appellee, a salaried fireman, sued the City of Pittsburgh for disability benefits under the so-called “Heart and Lung Act.”
On April 19, 1950, appellee signed and delivered a letter addressed to the Chief of the Bureau of Fire in which he purported to tender his resignation, effective forthwith, but which was tendered on the understanding that he would be reinstated if and when his health was recovered. This letter was accepted with the written understanding that appellee would be reinstated when his health improved to an acceptable point. Appellant takes the position that this letter removed appellee from the status of a fireman and therefore made him ineligible to institute this lawsuit.
The appellee claims recovery from appellant of two separate items: (1) his full salary during the period of his temporary incapacity from September 27, 1951 (the effective date of the Act) until June 21, 1954 (the date .of permanent incapacity) and (2) “compensation” for permanent incapacity from June 21, 1954- to the date of suit.
At trial, the jury made specific findings of fact: (1) that on September 27, 1951, the 'appellee was a fireman, i. e. that he had not resigned; (2) that appellee was suffering from tuberculosis of the respiratory system;
This appeal poses two principal questions: (1) does the “Heart and Lung Act” encompass a claim for disability arising from tuberculosis which occurred over two years prior to the Act?; (2) did appellee resign as a fireman in April 1950 so that he had no status to present a claim under the Act ?
The lower court considered that both these questions were res judicata. When the appellee filed his assumpsit complaint, the City filed preliminary objections raising both these questions. After oral argument, the court below dismissed the preliminary objections and granted leave to the City to file an answer. The City took no appeal from the dismissal of the preliminary objections. The court below, after the trial on the merits, considered both questions res judicata. With that conclusion we disagree. An appeal lies only from a definitive action of a lower court such as a judgment, a decree or a final order, unless an appeal is specifically allowed by statute: Coleman, Admr., et al. v. Huffman et al., 348 Pa. 580, 36 A. 2d 724; Stadler, Admr. v. Mt. Oliver Borough, 373 Pa. 316, 95 A. 2d 776; Sullivan v. Philadelphia, 378 Pa. 648, 107 A. 2d 854; 9 Standard Penna. Practice §20. The order overruling the City’s preliminary objections was not a final order; it was interlocutory, hence, not appealable: Stamper v. Kogel
The “Heart and Lung Act” contains no effective date and, therefore, since it was “enacted finally after the first day of September of the year of the regular session”, it became effective immediately upon final enactment, that is, on September 27, 1951: Statutory Construction Act of May 28, 1937, P. L. 1019, Art. I, §4, as amended, 46 PS §504.
Appellee became ill in March 1949, over two years prior to the effective date of the Act under which he claims. The City takes the position that the Act was prospective only in its operation and appellee could not be included within its terms. The Statutory Construction Act of 1937
The appellee is not claiming a/ny benefits prior to the effective date of the Act but only thereafter. A recognition of appellee’s claim does not require that we place a retroactive construction on the Act, but simply that we apply the Act to a condition which existed on the date when the Act became effective even though such condition resulted from events which occurred prior to its effective date. In Burger Unemployment Compensation Case, 168 Pa. Superior Ct. 89, 77 A. 2d 737, the claimant became unemployed as the result of a .strike and under the applicable unemployment compensation law was not entitled to any benefits; this strike was converted into a “lock out” by the employer and the “lock out” occurred before and continued after the effective date of the Act of May 23, 1949, P. L. 1738, which allowed benefits due to stoppage of work caused by a “lock out”. The Superior Court, permitting the claimant to receive benefits beginning with the effective date of the Act, stated: “This ruling does not contravene the legislative mandate against retroactive construction of statutes. Statutory Construction Act of May 28, 1937, P. L. 1019, §56, 46 PS §556. Where, as here, no vested right or contractual obligation is involved, an act is not retroactively construed when applied to a condition existing on its effective date even though the condition results from events which occurred prior to that date. ‘A statute is not retrospective ... because a part of the requisites for its action is drawn from a time antecedent to its passing’: Endlich, Interpretation of Statutes, §280. ‘However, a statute is not regarded as operating retroactively because of the mere fact that it relates to antecedent events, or draws upon
An examination of the statute indicates that the Legislature intended compensation to be paid to all firemen who fall within the statutorily stated requirements: (1) that the fireman has tuberculosis of the respiratory system; (2) that the tuberculosis must have been contracted or incurred after four years of continuous seiwice as a fireman; (3) that the tuberculosis must have been caused by extreme overexertion in times of stress or danger or by exposure to heat, smoke, fumes or gases; (4) that such extreme overexertiori or expo
Appellant further contends that the appellee had resigned from the fire department and had thus removed himself from the group of employees covered by the Act. This contention requires an examination of appellee’s letter of April 19th, .together with appellant’s acceptance thereof. If this letter had contained only the first paragraph, it would clearly constitute a resignation as a fireman and a complete severance of the relationship between appellee and the City. However, the second paragraph of the letter and the written acceptance by the City officials indicates that any severance of the relationship between appellee and the City was only for such period of time as appellee continued in ill health. Regardless of the authority of the Chief of the Fire Bureau or the Director of Public Safety to qualify the acceptance of this letter, the fact remains that the acceptance itself raises considerable doubt and ambiguity whether it was the intent of the parties that appellee be considered in a resigned status or on a
The jury, under proper instructions from the court, •specifically resolved this ambiguity in appellee’s favor and found as a fact that appellee was on 'September 27, 3951, a fireman of the City of Pittsburgh. An examination of the recox'd indicates that this finding was supported by sufficient evidence; under tbe circumstances we conclude that the appellee was in the status of a fireman at tlxe time of the institution of this litigation.
However, appellee claimed compensation not only for a period of time during which he was temporarily disabled, but also for a period of time during which he was permanently disabled. In Kurtz v. Erie, 389 Pa. 557, 133 A. 172, we have recently held that a fireman who is permanently incapacitated or disabled is not entitled to- compensation under the “Heart and Lung Act”, and, in accordance with that ruling, the appellee cannot recover from the City any compensation during the period of Ms permanent disability.
While it is true that wo have the right to modify or certify a judgment of ¡the court below and to enter such judgment as we deem proper and just without returning the record for amendment or modification to
The court below, with the consent of the parties, submitted to the jury seven specific questions of fact for their determination. The jury answered all these questions in appellee’s favor and the answers to the questions constituted the verdict. Appellee then submitted to the court a computation of figures showing that which he claimed during the period of temporary disability ($13,648.29) and that which he claimed during the period of permanent disability ($2,517.48). On the basis of that computation and supported by the specific finding of the jury, the court entered a judgment for the combined figures or a judgment of $16,-165.77.
It is clear, therefore, just what portion of the judgment covers the period of permanent disability and just what portion of the judgment covers the period of temporary disability. To remand this ease to the court below and direct another trial would cause delay and perhaps a deprivation of justice, especially in view of appellee’s physical condition. Under the present circumstances, we feel that it is eminently just and proper that we direct the entry of judgment without returning the record to the court bellow.
The judgment in the court below is modified and a judgment is directed to be entered in favor of the appellee and against -the City of Pittsburgh in the amount of $13,648.29. The costs are to be paid by appellant.
Act of June 28, 1935, P. L. 477, as amended, 53 PS §327.
This section of the Act (Act of May 28, 1937, P. L. 1019, Art. IV, §56, 46 PS §556) restated the Pennsylvania law at that time.
Comment on the Statutory Construction Act by W. F. Schulte, Jr., and David Stahl, 46 PS p. 31.
Act of May 20, 1891, P. D. 101, §2, 12 PS §1164; Downes v. Hodin, 377 Pa. 208, 104 A. 2d 495; Clewell v. Pummer, 388 Pa. 592, 131 A. 2d 375.