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JOHN J. KOHN v. HENRY H. KAPLAN (07/19/77)

decided: July 19, 1977.

JOHN J. KOHN, PETITIONER
v.
HENRY H. KAPLAN, CHAIRMAN, COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, RESPONDENT



Original jurisdiction and Appeal in case of John J. Kohn v. Henry H. Kaplan, Chairman, Commonwealth of Pennsylvania, Pennsylvania Liquor Control Board.

COUNSEL

Paul L. Zeigler, with him Goldberg, Evans & Katzman, for petitioner.

J. Leonard Langan, Assistant Attorney General, with him Harry Bowytz, Chief Counsel, for respondent.

Judges Wilkinson, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 31 Pa. Commw. Page 167]

John J. Kohn, who was formerly an enforcement officer of the Pennsylvania Liquor Control Board, has filed a Petition for Review naming the Chairman of the Liquor Control Board as respondent. He invokes both Sections 401 and 403 of the Appellate Court Jurisdiction Act of 1970*fn1 as the source of our jurisdiction. Section 401, 17 P.S. § 211.401, gives us original jurisdiction of actions against the Commonwealth or any officer of the Commonwealth, and Section 403, 17 P.S. § 211.403, gives us jurisdiction of appeals from final orders of administrative agencies of the Commonwealth. Kohn asks us in our original jurisdiction to direct the respondent to pay him his salary during a period of temporary incapacity and medical expenses of an injury suffered in his employment; with respect to his asserted appeal from an order of an administrative agency, Kohn says that the failure of the Liquor Control Board to respond to his lawyer's letter demanding the payments just described constituted an adjudication subject to our review.

Kohn claims to have suffered a heart attack as a result of his activities during a raid on a bar. His claim is based on Section 1 of the Act of June 28, 1935, P.L. 477, as amended, 53 P.S. § 637, which in pertinent part states:

[ 31 Pa. Commw. Page 168]

(a) . . . any enforcement officer and investigator employed by the Pennsylvania Liquor Control Board . . . who is injured in the performance of his duties . . . and by reason thereof is temporarily incapacitated from performing his duties, shall be paid by the Commonwealth of Pennsylvania . . . his full rate of salary, as fixed by ordinance or resolution, until the disability arising therefrom has ceased. All medical and hospital bills, incurred in connection with any such injury, shall be paid by the Commonwealth of Pennsylvania . . . .

As noted, Kohn, by counsel, wrote to the Liquor Control Board which ignored him. Counsel also wrote to the State Workmen's Insurance Fund which an Attorney General's opinion suggested had jurisdiction, and again received no response. The Petition for Review sounding in mandamus in our original jurisdiction asks that we either direct the respondent chairman of the Liquor Control Board to conduct a hearing with respect to the claim or order the chairman to disburse the moneys due the petitioner. It is not clear what Kohn would have us do with respect to his appeal from the Liquor Control Board's asserted adjudication by failure to respond to his letter. Without condoning the failure of either the Liquor Control Board or the State Workmen's Insurance Fund to respond to correspondence in behalf of a disabled former State employee, we agree with the respondent's argument in support of preliminary objections seeking dismissal of the petition that neither the respondent chairman nor the Liquor Control Board has power to adjudicate Kohn's claim and to order its payment by the Commonwealth.

Subsection (a) of Section 1 of the Act of June 28, 1935, as amended, which we have reproduced earlier provides that Kohn's claim shall be paid, if justified,

[ 31 Pa. Commw. Page 169]

    by the Commonwealth of Pennsylvania, and Subsection (d) of the same provision, 53 P.S. § 637(d) says that payments "required to be made by the Commonwealth of Pennsylvania . . . on account of any enforcement officer . . ...


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