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CHARLOTTE KREIGER v. CITY PHILADELPHIA (10/31/79)

decided: October 31, 1979.

CHARLOTTE KREIGER, APPELLANT
v.
CITY OF PHILADELPHIA, BOARD OF PENSIONS AND RETIREMENT, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Charlotte Kreiger v. City of Philadelphia Board of Pensions and Retirement, No. 3330 December Term, 1975.

COUNSEL

Arthur J. Matusow, with him Hugh M. Odza, and Wissow and Odza, for appellant.

John M. McNally, Jr., First Deputy City Solicitor, for appellee.

Judges Rogers, Blatt and Craig, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 47 Pa. Commw. Page 132]

Charlotte Kreiger has appealed from an order of the Court of Common Pleas of Philadelphia County

[ 47 Pa. Commw. Page 133]

    affirming the decision of the Board of Pensions and Retirement of the City of Philadelphia (Board) denying Kreiger a service-connected disability pension under the provisions of the Philadelphia Retirement System Ordinance. We reverse and remand.

Kreiger, an employee of the City of Philadelphia, contends that she suffered a back and leg injury in 1956 when a typewriter table which she was using collapsed. The injury was aggravated by other accidents occurring over the next nine years. In 1969, Kreiger applied for City of Philadelphia service-connected disability benefits and received such for one year. She then applied for a permanent service-connected disability pension. A hearing was conducted by a panel consisting of three members of the Board. A deputy city solicitor, who was a member of the Board but who was not serving on the panel, attended the panel's hearing as counsel for the Board. Kreiger presented the testimony of two physicians in support of her claim. The deputy city solicitor objected to questions put by Kreiger's counsel in direct examination of her witnesses and cross-examined these witnesses. The deputy city solicitor was clearly there in opposition to Kreiger's claim and in support of the thesis that Kreiger's disability was caused by arthritis. The only evidence produced by the Board was a report of a Medical Panel which had examined Kreiger at the Board's request. No member of the Medical Panel testified.

The three member panel recommended to the full Board that Kreiger's application be granted. The Board, however, denied Kreiger's application by a 5-4 vote. The deputy city solicitor cast his vote as a Board member against the application.

The court below affirmed the Board's action. We are required to reverse but we make it clear that we do so on a ground which was not raised before the able

[ 47 Pa. Commw. Page 134]

    judge who decided the matter for the Court of Common Pleas of Philadelphia County. The crucial fact that the deputy city solicitor had voted against Kreiger's claim as a Board member was not known to Kreiger until after the court's decision was handed down. Although the Board lodged the minutes of the meeting at which the members voted to deny Kreiger's application in the court below, a copy was not sent to Kreiger or her attorney as required by a local rule of court and as indicated by Pa. R.C.P. No. 233. ...


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