Sidlow v. Township of Nether Providence

DOYLE, Judge.

This is an appeal by Allan Sidlow and the Delaware County Lodge No. 27 Fraternal Order of Police (Union) from an order of the Court of Common Pleas of Delaware County denying their petition for peremptory judgement and dismissing their complaint in mandamus.

Sidlow was employed as a police officer by the Township of Nether Providence (Township) when, on October 30, 1989, he suffered a myocardial infarction allegedly due to certain stressful encounters connected with his work. Consequently Sidlow was forced to miss ninety-nine days of scheduled work during the period from October 30, 1989 to March 6, 1990.¹ The Township charged those days against Sidlow’s accumulated sick leave (96 days) and annual vacation leave (3 days). Sidlow then asked the Township to restore credit for his sick and vacation leave and pay him benefits under what is commonly referred to as the Heart and Lung Act, Act of June 28, 1935, P.L. 477, as amended, 53 P.S. §§ 637, 638. The Township apparently did not respond to this request.

Sidlow then filed the instant action in mandamus contending that, pursuant to Section 1 of the Heart and Lung Act, the Township was statutorily obligated to pay him his full rate of salary for his period of disability and that it acted wrongfully when it instead forced him to use his sick and vacation leave.² He therefore sought an order directing the Township to restore his sick and vacation days and to pay his attorney’s fees. He also filed a petition for peremptory judgment averring that his right to relief was clear. While the mandamus action was pending the Township offered to give Sidlow a hearing on his entitlement to benefits. Sidlow declined the offer for reasons not of record although it appears he believed that the proper forum was the court of common pleas. The trial court denied the petition for peremptory judgment and dismissed the complaint.³ The essential basis for the trial court’s determination was its belief that other adequate remedies were available to Sidlow thus making mandamus inappropriate.⁴ Among the remedies it perceived as available to Sidlow were a hearing before the Township Board of Commissioners held pursuant to Section 553 of the Local Agency Law, 2 Pa.O.S. § 553; a hearing under The Pennsylvania Workmen’s Compensation Act;⁵ and a grievanee procedure under the applicable collective bargaining agreement. We must now decide whether the mandamus complaint was properly dismissed, which, in turn, places before us for the first time the issue of which tribunal, or tribunals, are the proper forums to adjudicate claims under the Heart and Lung Act.

We begin our analysis with the recognition that the legislation which created Heart and Lung Act benefits did not establish or identify any forum to adjudicate the right to those benefits. Consequently, the question of what tribunal has the authority to grant or terminate Heart and Lung Act benefits has repeatedly been litigated.⁶

We explained in Wisniewski v. Workmen’s Compensation Appeal Board (City of Pittsburgh), 153 Pa.Commonwealth Ct. 403, 621 A.2d 1111 (No. 931 C.D.1991, filed February 9, 1993), that the Workmen’s Compensation authorities have no power to adjudicate Heart and Lung Act benefit questions despite their seeming expertise in this general area because no statute so empowers them to do so. We have also held that there is no requirement that an injured employee pursue his or her rights under the Workmen’s Compensation Act before being entitled to receive Heart and Lung Act-type benefits.⁷ See Hardiman v. Department of Public Welfare, 121 Pa.Commonwealth Ct. 120, 550 A.2d 590 (1988) (state mental hospital employee seeking benefits under what is colloquially known as Act 534⁸ was not required to file, in addition, a workmen’s compensation claim). We have, however, recognized other forums as having jurisdiction over Heart and Lung Act matters depending upon the identity of the employer. See Wisniewski

We next consider whether this matter should properly go before an arbitrator under collective bargaining procedures. In Huffman v. Borough of Millvale, 139 Pa.Commonwealth Ct. 349, 591 A.2d 1137 (1991), we held that an arbitration panel had jurisdiction to determine what constituted “full salary” under the Heart and Lung Act by reference to the term “salary” in the collective bargaining agreement. Similarly, in Coyne v. County of Allegheny, 129 Pa.Commonwealth Ct. 554, 566 A.2d 378 (1989), petition for allowance of appeal denied, 525 Pa. 649, 581 A.2d 574 (1990), we held that arbitration procedures were proper where the question was whether certain fringe benefits were included within the injured employee’s salary. Unlike Huffman and Coyne, however, the case before us now does not concern the question of what constituted Sidlow’s full salary for purposes of the Heart and Lung Act; here the issue concerns whether Sidlow is entitled to any Heart and Lung Act benefits at all and we see nothing in the collective bargaining agreement which vests jurisdiction of such an issue with the arbitrator.

The Township, relying on Wydra v. Swataro Township, 136 Pa.Commonwealth Ct. 164, 582 A.2d 710 (1990), maintains that its Board of Supervisors is the appropriate forum to adjudicate Sidlow’s claim. We disagree that Wydra is dispositive, but do agree that the Township had jurisdiction to adjudicate the issue. In Wydra we indicated in dicta that where a township police officer had been dismissed due to a work-related injury which prevented him from performing his job duties, a local civil service commission hearing the dismissal action has ancillary jurisdiction to decide the attendant Heart and Lung Act questions. Here, there was no dismissal or other similar personnel action, so ancillary jurisdiction could not lie with any such civil service tribunal. We believe, however, that under Camaione v. Borough of Latrobe, 113 Pa.Commonwealth Ct. 113, 536 A.2d 500 (1988), rev’d on other grounds, 523 Pa. 363, 567 A.2d 638 (1989), cert. denied, 498 U.S. 921, 111 S.Ct. 298, 112 L.Ed.2d 251 (1990), the local municipality does have authority to conduct a hearing on a Heart and Lung Act issue. In Camaione, the Borough unilaterally terminated Heart and Lung Act benefits in the context of involuntarily retiring the employee for economic reasons. We held that such action violated due process and that Camaione was entitled to a hearing held by the Borough on the question of whether his Heart and Lung Act benefits could properly be terminated. While our decision was reversed by the Supreme Court on the grounds that where the individual was involuntarily retired for economic purposes no due process matters as to Heart and Lung Act benefits were triggered,⁹ nothing in the Supreme Court’s opinion indicates disagreement with our determination that if a hearing had been required the Borough should have conducted it. We thus hold that jurisdiction here is with the Township which should conduct its hearing in accordance with Sections 551-555 of the Local Agency Law, 2 Pa.C.S. §§ 551-555, rather than with the common pleas court. We distinguish City of DuBois v. Beers, 120 Pa.Commonwealth Ct. 103, 547 A.2d 887 (1988), on the basis that while the trial court adjudicated a Heart and Lung Act question, its jurisdiction to do so was never challenged.

In summary, while the trial court properly denied the specific mandamus relief Sidlow sought, i.e., the grant of Heart and Lung Act benefits, we believe that it erred in failing to direct that Sidlow bring his cause of action with the Township for a hearing under Sections 551-555 of the Local Agency Law.¹⁰ Accordingly, our order shall direct that it do so.

ORDER

NOW, February 9, 1993, the order of Court of Common Pleas of Delaware County in the above-captioned matter is hereby affirmed insofar as it denied Sidlow benefits on the basis that another adequate remedy existed to determine this issue. We hereby order the Township to provide Sidlow with a hearing under Section 553 of the Local Agency Law on the issue of his entitlement to Heart and Lung Act Benefits.

Jurisdiction relinquished.

This matter was argued before a panel consisting of DOYLE, PELLEGRINI, JJ., and BARBIERI, Senior Judge. Because of the conclusion of BARBIERI’s, Senior Judge service, the case was submitted on briefs to LORD, Senior Judge for his consideration as a member of the panel.

1 . Sidlow’s last day of work was October 19, 1989, when, he alleges in his brief, he “experienced an episode of chest discomfort while responding to a violent domestic argument.” Yet, in paragraph 6 of Sidlow’s complaint his allegation is that he missed 99 days of work "beginning October 30, 1989, and ending March 6, 1990.” While we may take judicial notice that there are more than 99 days between the two dates asserted, we also acknowledge the fact that the 99 days of missed work might be subsumed within that period, or the beginning date may actually be October 20, 1989.

2 . Under Section 1 of the Heart and Lung Act, 53 P.S. § 637, certain types of employees, including township police officers, are entitled to receive their 'Tull rate of salary” if they are temporarily disabled due to a work-related injury. Section 2 of the Act, 53 P.S. § 638, provides:

No absence from duty of any such policeman or fireman by reason of any such injury shall in any manner be included in any period of sick leave, allowed such policeman or fireman by law or by regulation of the police or fire department by which he is employed.

3 . We note that the denial of peremptory judgment is an interlocutory order and is not appealable. Penn Advertising, Inc. v. Kring, 129 Pa.Commonwealth Ct. 402, 565 A.2d 1238, n. 1, (1989), petition for allowance of appeal denied, 525 Pa. 622, 577 A.2d 893 (1990). We shall, however, in the exercise of our discretion, treat it as a motion for summary judgment in order to move these proceedings along since for purposes of the jurisdictional issue before us there are no material facts in dispute. See id. We note that the Township did file a cross motion for summary judgment which was apparently never disposed of by the trial court.

4 . Mandamus is only proper to compel a ministerial act or mandatory duty where the plaintiff demonstrates a clear legal right to relief and a correspondingly clear duty on the part of the defendant and there is no other adequate remedy at law. Delaware River Port Authority v. Thornburgh, 508 Pa. 11, 493 A.2d 1351 (1985).

5 . Act of June 2, 1915, P.L. 736, as amended, 77 P.S, §§ 1-1031.

6 . For a thorough discussion of this point, see Debra Punsky Rand, Pennsylvania Heart and Lung Act: All Substance — No Forum, 2 Widener J.Pub.L. 43 (1992).

7 . We note that an employee who does receive workmen's compensation benefits while also receiving Heart and Lung Act benefits is statutorily obliged to turn over the workmen’s compensation benefits to his employer to avoid his receiving a double recovery. Section 1(c) of the-Heart and Lung Act also provides that the statutes of limitations present in the workmen's compensation act "shall not begin to run until the expiration of the receipt of benefits pursuant to [the Heart and Lung] act.”

8 . Act of September 2, 1961 P.L. 1224. This act covers certain Department of Public Welfare employees and county board of assistance workers who are injured by their patients or clients. The employee’s benefits under Act 534 are comparable with those authorized under the Heart and Lung Act, and the employee can receive his full salary if the disability is temporary.

9 . The employee was given a hearing on the propriety of his involuntary retirement.

10 . While Sidlow initially declined such a hearing, we do not believe his action constituted a waiver because of his apparent view that jurisdiction was with the common pleas court. As this opinion demonstrates, the solution was less than clear. Since we opine that the common pleas court does not have jurisdiction over the claim, Sidlow should be given the opportunity to litigate this case on the merits.