Appeal from order of Court of Common Pleas No. 5 of Philadelphia County, June T., 1965, No. 5501, in case of John W. Moss v. City of Philadelphia.
Albert Ring, with him Don F. D'Agui, and D'Agui and Del Collo, for appellant.
Matthew W. Bullock, Jr., Second Deputy City Solicitor, with him Jerome R. Richter and Benjamin Cherry, Assistant City Solicitors, and Edward G. Bauer, Jr., City Solicitor, for City of Philadelphia, appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Watkins, J.
[ 209 Pa. Super. Page 319]
This is an appeal from an order of the Court of Common Pleas No. 5 of Philadelphia County, opening a judgment entered upon an award made by the Workmen's Compensation Referee. The claimant-appellant, John W. Moss, was injured on duty as a prison guard on February 13, 1962. He was unable to work for 99 days. During his disability he received full pay from the City of Philadelphia. At the time of the hearing before the referee the money paid him by the City was charged to him as "sick leave" payments. The referee entered an order on December 12, 1964, directing the City to pay the claimant the sum of $47.50 weekly during the disability period. No appeal was taken from the referee's decision and the claimant filed a certified copy of the decision in the Prothonotary's office of the Court of Common Pleas where judgment on the award was entered on August 24, 1965.
Subsequent to the award but prior to the entry of judgment the City revised the claimant's record, restored to him his 99 days of sick leave and credited the payment of his salary as "disability salary" while "injured on duty".
The Philadelphia Civil Service Regulation Section 32 define "disability salary" as follows:
"Disability Salary -- the salary an employee was being paid on the date of his disability, as adjusted in accordance with any subsequent upward or downward revision of the rates of pay for positions in his class plus any earned pay step increases which he would have received subsequent to the disability date had he not been disabled, and assuming he had received performance ratings of Satisfactory or better." Section 32.045
[ 209 Pa. Super. Page 320]
of the Regulations provides that such pay may be made for a period not to exceed three years. Section 32.09 specifically provides that the benefits of the Regulation are not to duplicate workmen's compensation.
On October 5, 1965, the City filed a petition with the court below for a rule to show cause why the judgment should not be opened and the City let into a defense. At the same time a petition was filed with the workmen's compensation authorities to modify the referee's award. The court below opened the judgment. This appeal followed.
The claimant contends that since no appeal or petition for rehearing was filed, the compensation award entered by the referee was conclusive. He further contends that the petition to modify is not in accordance with the Workmen's Compensation Act since it does not allege any change in disability. ...