Appeal, No. 443, Jan. T., 1961, from judgment of Court of Common Pleas No. 2 of Philadelphia County, Sept. T., 1958, No. 1142, in case of Edna Mae Crawford, widow of Robert J. Crawford, deceased, v. City of Philadelphia et al. Judgment reversed.
Alexander F. Barbieri, for appellant.
Levy Anderson, First Deputy City Solicitor, with him Alfeo P. Libetti, Assistant City Solicitor, James L. Stern, Deputy City Solicitor, and David Berger, City Solicitor, for City of Philadelphia, appellees.
Before Bell, C.j., Musmanno, Jones, Cohen, Bok, Eagen and Alpern, JJ.
OPINION BY MR. JUSTICE MUSMANNO.
On December 29, 1954, the City Council of Philadelphia enacted an ordinance providing for payment, in $200 monthly installments, of $10,000 to widows or dependent children or parents of firemen and policemen killed in line of duty or in the performance of an "heroic deed which involves a special hazard or risk." (Code of General Ordinances of the City of Philadelphia, § 21-105, pages 770-771).
On December 23, 1955, Robert J. Crawford, a Philadelphia fireman, lost his life while engaged in fighting a fire. His widow, Mrs. Edna Mae Crawford, applied for benefits assertedly due her under the ordinance. The Award Committee, designated by the ordinance, to determine the applicability of the provisions of the ordinance, took no immediate or even delayed action on Mrs. Crawford's application, whereupon she instituted an action in mandamus to compel the committee to act.
Hearings were now held and on July 22, 1959 the Award Committee decided that Mrs. Crawford was entitled to the award. Payments were not begun, however, until September 1, 1959. The widow then filed an amended complaint in assumpsit seeking payments dating back to the date of Crawford's death. The City of Philadelphia and the Award Committee filed preliminary objections asserting that the complaint failed to set forth a cause of action because the ordinance "clearly provides that no payment shall be made until the Award Committee has certified to the Director of Finance that an award has been made."
The Court of Common Pleas No. 2 of Philadelphia County sustained the objections and the plaintiff appealed. It will be seen from what has been said that the question to be decided by this Court is: Do the monthly payments of the award, once adjudicated, begin as of the date of the death of the decedent or when the Award Committee makes its decision?
At the outset it must be noted that the defendants erred in their answer when they said the award may not be made "until" the Award Committee makes its decision. The ordinance does not so state. The language in question reads: "No payments shall be made pursuant to the terms of this ordinance unless the Award Committee shall have first certified in writing to the Director of Finance of the making of such an honor award."
The difference between "until" and "unless" is the difference between Alpha and Omega. If the ordinance said, as the appellees declared in the court below, that the payments were not to be made until the Award Committee approved the award, it could with some rationalization be argued that the payments should not begin until the award became a documented fact. ...