45 A.2d 401 | Pa. Super. Ct. | 1945
Argued December 10, 1945. The appeal is from an entry of judgment by the learned court below on the pleadings in an action of assumpsit. The controversy arises over the application of the Act of June 28, 1935, P.L. 477, § 1, as amended and clarified by the Act of May 14, 1937, P.L. 632, § 1, 53 P. S. § 327, to the facts upon which the case is based.
On February 22, 1943, Howard D. White, the appellant, while engaged in the performance of his duties as a salaried policeman of West Norriton Township, the appellee, sustained an accidental injury, which temporarily incapacitated him. He did not work for a long time, but he gradually improved so that for a period of several months immediately preceding January 31, 1945, according to his averment, he "was performing a great many but not all of his duties as policeman of the Township of West Norriton." For reasons which do not appear in this record the township authorities on January 23, 1945, dismissed the appellant from the police force, effective as of January 31, 1945, and up to and including that date his full salary was paid. Since then the township has declined to make any payments and as a result this suit was brought.
The Act of 1937, supra, provides that "any policeman or fireman of any city (except of the second class A), *377 borough, town or township, who is injured in the performance of 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." During the time of the temporary incapacity any sum received by the injured person under the Workmen's Compensation Act shall be turned over to the township. White complied with that requirement.
The appellant contends that although he has not been a township policeman since his dismissal, he is nevertheless entitled under the foregoing statute to be paid his full salary until there is a "complete disappearance of any degree of incapacity." The appellee, on the other hand, argues that the act has no application to a policeman injured in the line of his duty and temporarily incapacitated, who returned to uninterrupted active duty and thereafter was dismissed.
Prior to the Act of 1935 and its amendment, a policeman, if he became physically disabled and could not perform his duties, was entitled to his full rate of salary so long as he remained a policeman, unless there was an agreement, ordinance, rule, or regulation providing otherwise. The Supreme Court said in TheCity of Wilkes-Barre v. Meyers,
In the case of Iben v. Monaca Borough,
This court is convinced that the appellant has failed to bring himself within the provisions of the statute we have been considering.
Judgment entered by the court below is affirmed.