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CITY PHILADELPHIA v. LOUIS A. PICCIRILLI (05/29/74)

decided: May 29, 1974.

CITY OF PHILADELPHIA, APPELLANT,
v.
LOUIS A. PICCIRILLI, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of In Re: Appeal of Louis A. Piccirilli, No. 4814 May Term, 1971.

COUNSEL

John M. McNally, Jr., First Deputy City Solicitor, with him Nicholas Panarella, Assistant City Solicitor, James M. Penny, Jr., Assistant City Solicitor, John Mattioni, Deputy City Solicitor, and Martin Weinberg, City Solicitor, for appellant.

Yale B. Bernstein, with him Stanley Bashman and Bashman, Wertheimer, Kane, Manfredi & Byrne, for appellee.

Judges Kramer, Wilkinson, Jr., and Blatt, sitting as a panel of three. Opinion by Judge Wilkinson.

Author: Wilkinson

[ 13 Pa. Commw. Page 599]

Claimant-appellee, a 26-year old policeman for the City of Philadelphia, sustained a back injury on August 3, 1969, as the result of an on-duty automobile accident. Since September 17, 1970, he has not been on active duty.

After a hearing, the Police Department's Safety Officer recommended denial of benefits and on November 9, 1970, the Police Commissioner determined that claimant-appellee's disability was not service connected. An appeal followed and after a hearing, the Philadelphia Civil Service Commission determined that claimant-appellee "is fully recovered from the back injury of August 3, 1969, but is disabled due to congenital spondylolisthesis."*fn1 The Commission further found that the claimant-appellee "has not demonstrated by

[ 13 Pa. Commw. Page 600]

    a fair preponderance of the evidence that the accident of August 3, 1969 caused [claimant-appellee's] congenital spondylolisthesis to be disabling." An appeal followed and the Common Pleas Court of Philadelphia remanded the case "for further medical testimony, directed to the exclusive issue of whether the injury itself triggered the latent spondylolisthesis to such an extent that it became disabling." This appeal followed.

Initially we note that the order of the lower court remanding this case is ordinarily interlocutory and an appeal therefrom is usually premature. See Thatch v. Superior Zinc Company, 4 Pa. Commonwealth Ct. 550, 288 A.2d 564 (1972). As noted, however, in Williams v. Bonair Foundry Company, 215 Pa. Superior Ct. 357, 362, 257 A.2d 69, 71 (1969), an appeal is proper and not premature if "the lower court is without authority to . . . grant a rehearing of the matter because some testimony which could have been produced by the claimant was not." See Fesh v. American Steel & Wire Division, United States Steel Corporation, 4 Pa. Commonwealth Ct. 84, 286 A.2d 10 (1972).

The only medical evidence presented to the Commission were the reports of Dr. Cottrell and Dr. Klinghoffer. Dr. Cottrell diagnosed claimant-appellee's condition as spondylolisthesis but did not discuss the causal connection between claimant-appellee's injury and his present disability. Dr. Klinghoffer's report, however, did discuss causation: "This man sustained an acute low back strain that was superimposed upon a congenitally unstable lumbosacral joint by virtue of a spondylolysis associated with a spondylolisthesis of L-5 on S-1. Although he has recovered from the acuteness of his back injury, his underlying congenital anomaly is perpetuating some back symptoms secondary to his injury." This report certainly supports the Commission's

[ 13 Pa. Commw. Page 601]

    finding that there has been a full recovery from the back ...


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