Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of William L. Hyser, Jr. v. Allegheny County, No. GD 77-06026, Assumpsit.
Sanford A. Segal, Gatz, Cohen, Segal & Koerner, for appellant.
Evan E. Lloyd, Assistant County Solicitor, with him James H. McLean, County Solicitor, for appellee.
Judges Craig, MacPhail and Palladino, sitting as a panel of three. Opinion by Judge MacPhail.
[ 61 Pa. Commw. Page 170]
William L. Hyser, Jr. (Hyser) appeals here from an Order of the Court of Common Pleas of Allegheny County, dated July 21, 1980, that granted a motion for judgment on the pleadings filed by Allegheny County (County) and dismissed Hyser's complaint against the County.
In his complaint Hyser alleges that on or about February 18, 1966, he was employed as a guard at the County's jail in Pittsburgh, Pennsylvania, and that while he and two other guards were attempting to escort an unruly prisoner to an isolation cell, he sustained an injury to his right shoulder. Hyser further alleges that as a result of the 1966 injury, he later developed a bursitis condition that required surgery upon some unspecified day in May of 1974. In 1977 Hyser filed a complaint in mandamus in the Court of Common Pleas of Allegheny County seeking compensation for lost wages and medical expenses as provided under Section 1531 of the Second Class County Code, Act of July 28, 1953, P.L. 723, as amended, 16 P.S. § 4531 (Section 1531). On July 18, 1978, the lower court denied Hyser the right to proceed in mandamus
[ 61 Pa. Commw. Page 171]
and permitted him to amend his complaint and proceed in assumpsit. An amended complaint was filed on August 3, 1978. The County filed an answer denying liability and under new matter raised the issue of the timeliness of Hyser's action. On April 21, 1980, the County filed a motion for judgment on the pleadings. Argument was held. The Court of Common Pleas of Allegheny County, sitting en banc, granted the County's motion on the grounds that the complaint was untimely filed and that Hyser had not been incapacited within the meaning of Section 1531.*fn1
The issue before this Court*fn2 is whether the trial court was correct when it concluded that the time limitation for the filing of claims under The Pennsylvania
[ 61 Pa. Commw. Page 172]
Workmen's Compensation Act (Act)*fn3 governed the time within which suit could be ...