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CHARLES RENK AND JAMES SPRATT v. JULIAN J. CORDICE AND RYDER TRUCK LINES (02/27/81)

filed: February 27, 1981.

CHARLES RENK AND JAMES SPRATT
v.
JULIAN J. CORDICE AND RYDER TRUCK LINES, INC. APPEAL OF CITY OF PITTSBURGH



No. 821 April Term, 1978, Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division, No. 2267 October Term, 1978.

COUNSEL

Arthur J. Gilkes, Jr., Assistant City Solicitor, Pittsburgh, for appellant.

Louis M. Tarasi, Jr., Pittsburgh, for Renk and Spratt, appellees.

William C. Walker, Pittsburgh, for Cordice and Ryder, appellees.

Price, Hester and Cavanaugh, JJ.

Author: Hester

[ 286 Pa. Super. Page 514]

This is an appeal by the City of Pittsburgh from the Order of the Court of Common Pleas of Allegheny County granting appellees' petition to enforce settlement and strike the appellant's lien.

Appellees Renk and Spratt are members of the police department of the appellant City of Pittsburgh. Appellees sustained injuries as the result of a vehicle accident which occurred while they were on active duty. The City was required to pay to appellees their full salary during their incapacity resulting from said injuries. This is mandated by the Act of June 28, 1935. P.L. 477 § 1, as amended, 53 P.S. § 327, which provides in part as follows: "Any policeman * * * of any * * * city * * *, 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 * * * municipality, by which he is employed, 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 such * * * municipality. During the time salary for temporary incapacity shall be paid by the * * * city * * *, any workmen's compensation, received or collected by a policeman * * * for such period, shall be turned over to such * * * city * * *, and paid into the treasury thereof, and if such payment shall not be made by the policeman * *, the amount due the * * * city * * * shall be deducted from any salary then or thereafter becoming due and owing: * *."

It is to be noted that the above act contains no specific provision giving the City the right to recover against a third

[ 286 Pa. Super. Page 515]

    party for payments made by it to injured policemen. However, in a well-structured opinion dealing with an exact situation, this Court stated that the City does have the right of subrogation based upon considerations of equity and good conscience; Furia v. City of Philadelphia, 180 Pa. Super. 50, 118 A.2d 236 (1955). See also Workmen's Compensation Appeal Board v. Del Vecchio, 23 Pa. Commw. 244, 351 A.2d 691 (1976); 74 A.L.R.3d 854, Sec. 7, Page 880, Sec. 34, Page 941.

Subsequently, appellees initiated an action in trespass against the driver of the other vehicle and his employer. Following five days of trial, the case was settled for $110,000.00 ($105,000.00 to appellee Spratt and $5,000.00 to appellee Renk).

The City, in the interim, had paid appellee Spratt the sum of $85,000.00 and appellee Renk $1,456.00. The City filed a lien for said amounts against the proceeds of the settlement and thereafter refused to reduce or compromise its lien.

Appellant and appellees could not agree on the distribution of the proceeds of the settlement and the aforementioned petition was filed, bringing the issue before the court.

The court below by order of Judge Nickolas P. Papadakos dated March 28, 1978, distributed the proceeds of the settlement fund as follows:

"AS TO JAMES SPRATT

TOTAL AMOUNT OF SETTLEMENT-$105,000.00

TO: Conte, Courtney and Tarasi, the sum

     of $42,000.00 for their fee in represent-

     ing James Spratt; based upon a 40% con-

     tingent fee agreement with their client,

James Spratt; $42,000.00

TO: Conte, Courtney and Tarasi, the sum

     of $25,200.00 for their fee in protecting

     the subrogation rights of the City of

Pittsburgh; $25,200.00

TO: Conte, Courtney and Tarasi, the sum of

$3,247.08 for reimbursement of expenses

     for the James Spratt action; $3,247.08

TO: The City of Pittsburgh, the sum of

$34,552.92 which represents the balance

     of the settlement fund; $34,552.92

TOTAL*fn1 $105,000.00

AS TO CHARLES RENK

TOTAL AMOUNT OF SETTLEMENT - $5,000.00

TO: Conte, Courtney and Tarasi, the sum of

$2,000.00 for their fee in representing

Charles Renk; based upon a 40% contingent

     fee agreement with their client, Charles

Renk; $2,000.00

TO: Conte, Courtney and Tarasi, the sum of

$582.50 for their fee in protecting the

     subrogation rights and lien (in the amount

     of $1,456.25) of the City of Pittsburgh; $582.50

TO: Conte, Courtney and Tarasi, the sum of

$742.07 for reimbursement of expenses

     for the Charles Renk Action (64% to be

     paid by Charles Renk and ...


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