Appeals, Nos. 13 and 40, March T., 1957, from judgment of Court of Common Pleas of Erie County, Feb. T., 1955, No. 15, in case of Carl H. Kurtz, administrator of estate of Carl F. Kurtz, deceased v. The City of Erie. Appeal of defendant sustained and judgment reversed; appeal of plaintiff dismissed; reargument refused July 25, 1957.
Gerald A. McNelis, for plaintiff.
Maurice J. Coughlin, Assistant City Solicitor, with him Gerald J. Weber, City Solicitor, for defendant.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
The instant controversy requires an interpretation of an Act of the General Assembly commonly called the "Heart and Lung Act".*fn1
For approximately thirty-two years, decedent was employed as a salaried fireman by the City of Erie. For some time prior to February 11, 1952, decedent suffered from hypertension with a resultant high blood pressure. Early on the morning of February 11, 1952, a fire occurred at the Calabrese Club in Erie and decedent, acting in the performance of his duties, attended this fire where, after having coupled a fire hose, he collapsed on the side of the fire truck. The court below found that the evidence was "clear, positive and undisputed that the aggravation of Kurtz's dormant heart condition ... did arise directly out of his "extreme overexertion' at the Calabrese fire."
Five days later - February 16, 1952 - decedent took a sick leave which continued until April 15, 1952, when he voluntarily submitted his resignation as a fireman, which resignation was duly accepted by the City. Decedent
never returned to work from that time until his death which occurred on October 21, 1954.
Approximately three weeks subsequent to decedent's death his personal representative (hereinafter called claimant) instituted a suit under the "Heart and Lung Act", supra. In this suit a recovery in the alternative was sought against the Ciyt, either of decedent's full salary from February 16, 1952 to the date of death at the rate of $300 per month or a total sum of $9,750, or compensation under the occupational disease provisions of the act at the rate of $30 per week or a total sum of $4,178.48. The City presented a threefold defense to this suit: (1) that the decedent was not a fireman at the time of the institution of suit; (2) that the decedent's injury was not caused by an accident within the provisions of the Act; and (3) that the decedent did not come within the terms and benefits of the Act because he had not been temporarily incapacitated by the performance of his duties.
Upon completion of testimony in the lower court, counsel for the respective parties stipulated that there was no issue of fact for submission to the jury, and that the disposition of the litigation was entirely a matter of law; upon the basis of this stipulation, the matter was submitted to the trial judge for determination without a jury. The trial judge directed the entry of a verdict in favor of the decedent's personal representative and against the City in the sum of $4,294.24.*fn2 Upon ...