Appeal, No 11, March T., 1960, from order of Court of Common Pleas of Allegheny County, April T., 1958, No. 1585, in case of James Creighan v. Firemen's Relief and Pension Fund Board of the City of Pittsburgh. Order affirmed. Mandamus. Order entered for plaintiff awarding pension, opinion by MONTGOMERY, J. Pension fund board appealed.
George Shorall, Assistant City Solicitor, with him David Stahl, City Solicitor, for appellant.
Thomas Lewis Jones, with him Richard C. Witt, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.
OPINION BY MR. JUSTICE MUSMANNO
James Creighan, fireman, has brought an action of mandamus against the Firemen's Relief and Pension Fund Board of the City of Pittsburgh for pension benefits under the Firemen's Relief and Pension Fund Law of May 25, 1933, P.L. 1050, as amended (53 P.S. § 23601 et seq.) hereinafter referred to for brevity's sake as the Pension Law.
Creighan became a fireman in the City of Pittsburgh on May 11, 1937, and performed the duties of a hoseman until February 22, 1949, when tuberculosis of the respiratory system forced him into a sanitarium (Leech Farm) where he remained until April, 1950. From that date until October 20, 1951, he was an outpatient, but his condition worsened and he re-entered
the sanitarium, this time remaining until September, 1953 when the doctors certified him for light duty which, however, was never assigned to him. On June 21, 1954, he was certified to be permanently and totally incapacitated.
In the meantime (November, 1952) he had brought an action against the City of Pittsburgh under the Heart and Lung Act.*fn1 At the trial, in that action, the jury made specific findings of fact, namely, Creighan was suffering from tuberculosis of the respiratory system which was contracted or incurred after four years of continuous service as a fireman, that it was caused by extreme overexertion in times of stress or danger and by exposure to heat, fumes, or gases arising directly out of his duties as a fireman, and that he was totally and permanently disabled as of June 21, 1954. On appeal to this court (Creighan v. City of Pittsburgh, 389 Pa. 569), we sustained those findings and affirmed a judgment of $13,648.29 for the period of his temporary incapacity. We allowed no amount for permanent incapacitation because we concluded that the provisions of the Heart and Lung Act were restricted to temporary disability.
In February, 1958, Creighan filed an action in mandamus to compel the Firemen's Relief and Pension Fund Board (hereinafter to be referred to as the Board) to award him a pension under the Pension Law, which authorizes pension payments when it is established that the applicant "while a member of the fund, was injured in the line of duty and disabled through such injury, that such disability continues, and that the applicant is no longer ...