Appeal, No. 67, March T., 1957, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1953, No. 1422, in case of James Creighan v. City of Pittsburgh. Judgment modified; reargument refused July 1, 1957.
George Shorall, with him J. Frank McKenna, Jr., for appellant.
Thomas Lewis Jones, with him Dale Cleland, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
Appellee, a salaried fireman, sued the City of Pittsburgh for disability benefits under the so-called "Heart and Lung Act."*fn1
From May 11, 1937 until February 22, 1949, the appellee was employed by the City as a salaried fireman. In March 1949 appellee was found to be suffering from tuberculosis of the respiratory system: from April 14, 1949 until April 30, 1950, he was a patient at a sanitarium; from April 30, 1950 until October 1951, he was an out-patient and then returned to the sanatarium where he remained until September 1953. On November 24, 1953, appellee was certified by medical authorities as being able to return to his duties and, although desirous of working, he was not reinstated. On June 21, 1954, he was found permanently incapacitated because of tuberculosis of the respiratory system and since that time has been a sanitarium patient.
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 ...