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APPEAL LOUISE STANTON. LOUISE STANTON (07/05/79)

decided: July 5, 1979.

IN RE: APPEAL OF LOUISE STANTON. LOUISE STANTON, APPELLANT


Appeal from the Order of the Court of Common Pleas of Northampton County in case of In Re: Appeal of Louise Stanton, No. 283 April Term, 1977.

COUNSEL

Joel M. Scheer, for appellant.

Robert A. Freedberg, for appellee.

Judges Mencer, Rogers and Craig, sitting as a panel of three. President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Craig and MacPhail. Judges Blatt and DiSalle did not participate. Opinion by Judge Mencer. Dissenting Opinion by Judge Craig. Judge Rogers joins in this dissent.

Author: Mencer

[ 44 Pa. Commw. Page 35]

Louise Stanton (claimant) has appealed an order of the Court of Common Pleas of Northampton County upholding a decision of the Board of Managers of the City of Easton -- Firemen's Pension Fund (Board) denying her application for a pension. We affirm.

The facts are undisputed. Claimant is the widow of William G. Stanton, who was killed in a motorcycle accident on July 16, 1974. At the time of his death, William Stanton was employed by the City of Easton Fire Department, having served slightly more than four years. His accident, however, occurred while he was off duty and was not job related.

Claimant requested pension benefits pursuant to Section 4321 of The Third Class City Code (Code), Act of June 23, 1931, P.L. 932, as amended, 53 P.S. § 39321, which reads, in pertinent part, as follows:*fn1

[ 44 Pa. Commw. Page 36]

Upon the death of a member who retires on pension or is killed in the service on or after January 1, 1960, or who dies in the service on or after January 1, 1968, payments as hereinafter provided shall be made to his widow during her life so long as she does not remarry.

Her request was voted on by the Board and approved on November 14, 1974. The City of Easton, however, refused to issue a check for the pension, whereupon claimant filed an action in mandamus in the Court of Common Pleas of Northampton County to compel the City to pay the pension. The lower court dismissed claimant's mandamus action as premature, in that the Board's approval did not constitute a valid adjudication under the Local Agency Law, Act of December 2, 1968, P.L. 1133, formerly 53 P.S. § 11301 et seq.*fn2 Claimant did not appeal this decision.

On April 21, 1977, the Board again considered claimant's request and filed a formal adjudication in accordance with the Local Agency Law, denying claimant a pension because her husband's death was not job related and he had not met the age and service requirements of Section 149.06 of the Codified Ordinances of the City of Easton.*fn3 On appeal, the Court of Common Pleas of Northampton County affirmed

[ 44 Pa. Commw. Page 37]

    the Board, holding that a fireman's death, before he reaches retirement, must occur while he is on active duty in order for his widow to be entitled to a pension under Section 4321. This appeal followed.

Claimant first contends that the lower court erred in the mandamus action in finding that the initial vote of the Board did not constitute an enforceable adjudication. Claimant, however, is precluded from raising this issue by the doctrine of collateral estoppel, as the issue was fully litigated in the mandamus action and this action arises out of the same subject matter and transaction as the mandamus action. See Restatement of Judgments § 70, Comment b (1942); cf. Harrington v. Workmen's Compensation Appeal Board, 15 Pa. Commonwealth Ct. 119, 325 A.2d 337 (1974) (fireman who was injured while driving his car home from work held estopped from raising the issue of whether he was injured in the course of his employment as the issue had been previously litigated in a Philadelphia civil service action).

Claimant's second contention is not as easily resolved. She argues that the lower court erred in finding that a fireman's death must occur while he is on active duty before a widow may collect a pension. Claimant argues that the phrase "dies in the service" as added by Section 2, Act of July 20, 1968, P.L. 434, shows a legislative intent to pay a pension to widows of firemen who die while members of the fire department regardless of the circumstances of the fireman's death.

Although we agree with claimant that "in the service" means in the employ of the fire department, our conclusion does not automatically entitle claimant to a pension, as we do not find an independent right to

[ 44 Pa. Commw. Page 38]

    a pension in widows of members who die in the service. Their rights are necessarily derived ...


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