Appeal from the Order of the Department of General Services in the case of In Re: Charles H. Seybold, deceased, Claim under Act 101 of 1976, Order dated September 15, 1980.
Ronald P. Koerner, Gatz, Cohen, Segal & Koerner, for petitioner.
Thadeus A. Tanski, Chief, General Litigation Unit, with him Anthony P. Krzywicki, Chief Counsel, for respondent.
President Judge Crumlish, Jr. and Judges Williams, Jr. and Barbieri, sitting as a panel of three. Opinion by Judge Barbieri.
[ 75 Pa. Commw. Page 119]
This is an appeal from an opinion and order of the Department of General Services (Department) which found that the Bureau of Risk and Insurance Management properly denied the payment of a death benefit to the petitioner, Marie L. Seybold.
Marie L. Seybold (Petitioner) is the widow of Charles H. Seybold, a former fireman for the City of Pittsburgh. Her claim is for the $25,000 death benefit provided for firefighters "killed in the performance of [their] duties" by Section 1 of Act of June 26, 1976 (Act), P.L. 424, as amended, 53 P.S. § 891.
On February 1, 1976, Mr. Seybold was on duty when an alarm was sounded. Mr. Seybold donned boots, heavy protective clothing and a helmet and drove a pumper truck approximately one mile to the Carlton House where the alarm had been triggered. Mr. Seybold then carried about 47 pounds of equipment to an elevator, rode it to the ninth floor and proceeded at a "fast walk" up the stairs to the tenth floor with the equipment. There was then some smoke on the tenth floor, described by one witness "as cooking
[ 75 Pa. Commw. Page 120]
smoke." The extent of decedent's exposure to smoke is not clear. Decedent's superior, Captain Richard G. Bilby, the only witness to be called concerning the circumstances at the scene, testified that decedent "would . . . have inhaled smoke . . .," during a period of approximately ten minutes. He testified that he and decedent returned to the fire station where decedent died within a half hour following the episode at the scene of the alarm. The medical witnesses, one for each litigant, were at odds. Appellee's witness, Dr. George R. Moffitt, with extensive qualifications as a cardiologist, was of the opinion that decedent's death was the result of a "slowly progressive disease process that had built up to a climax resulting in a cardiac death." He did state, however: "If there is enough smoke in a combustive atmosphere and there are large amounts of carbon monoxide, then there is no question that this could be a cause of death." The deposition of Dr. Joshua A. Perper, Chief Forensic Pathologist for the County of Allegheny, was offered by Claimant. The deposition was taken in Allegheny County because of Dr. Perper's unavailability to travel to Harrisburg where the hearing examiner sat. Petitioner offered a four page document containing the curriculum vitae of Dr. Perper, including approximately thirty-five publications which he had written, eleven of which dealt with sudden death and seven of these with heart or cardiac deaths. Dr. Perper's testimony was that decedent's activities in connection with the alarm on February 1, 1976, with the physical and mental stress involved, coupled with decedent's cardiovascular condition, triggered and caused the fatal heart attack suffered by decedent. The hearing examiner, stating that the opinion of Dr. Moffitt was "more probative on the relationship
[ 75 Pa. Commw. Page 121]
that the events Mr. Seybold experienced at the Carlton House had on his death . . .," concluded:
Therefore, the Hearing Examiner finds that the decedent was not "killed" as that term is defined in 4 Pa. Code § 89.1 and that the claim was properly denied by ...