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EUGENE BRADY v. BOROUGH DUNMORE (08/03/84)

decided: August 3, 1984.

EUGENE BRADY, APPELLANT
v.
BOROUGH OF DUNMORE, APPELLEE



Appeals from the Orders of the Court of Common Pleas of Lackawanna County in case of Borough of Dunmore v. Eugene Brady, No. 576 March Term 1977 and in case of Eugene Brady v. Borough of Dunmore, No. 172 May Term, 1978.

COUNSEL

Paul A. Barrett, Nogi, O'Malley, Harris & Schneider, P.C., for appellant.

Lawrence A. Durkin, Tellie, Durkin, Weinberger, Murphy & Piazza, P.C., for appellee.

President Judge Crumlish, Jr. and Judges MacPhail and Colins, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 84 Pa. Commw. Page 332]

Eugene Brady (claimant) appeals from two final orders of the Court of Common Pleas of Lackawanna County, holding that: (1) claimant's job-related injury did not qualify for compensation under a Collective Bargaining Agreement, effective January 1, 1973; and (2) claimant was not entitled to benefits under the Heart and Lung Act*fn1 after October 23, 1973. We affirm.

Claimant was a full-time salaried fireman with the Dunmore Borough Fire Department from 1964 until December 28, 1972. On that date, while fighting a fire, claimant suffered a heart attack and was hospitalized. Mr. Brady never returned to work after that date.

On February 15, 1973 claimant filed a claim with the Workmen's Compensation Appeal Board seeking compensation pursuant to Section 108(o) of the Occupational Disease Act.*fn2 In a decision rendered on November 1, 1973, the Board found that Mr. Brady

[ 84 Pa. Commw. Page 333]

    had become totally disabled as a result of the heart attack and that pursuant to the provisions of the Heart and Lung Act, he should be paid his regular wages by the Borough of Dunmore from December 28, 1972 to October 23, 1973. Further, the Board found that Mr. Brady fell within Section 108(o) of the Occupational Disease Act, that the Commonwealth should pay the full amount of compensation disability under the Act and that the Borough is entitled to collect from Mr. Brady that proportional amount of the award paid pursuant to the Heart and Lung Act. Mr. Brady took no appeal from this decision. In November of 1973 claimant filed an application for a disability pension under the Firemen's Pension Ordinance of 1955, which was denied by the Borough due to the fact that he had not served the requisite minimum time of twenty (20) years as a paid fireman.

Mr. Brady then requested compensation from the Borough pursuant to Article VIII*fn3 of the Collective Bargaining Agreement of 1973. His request for compensation pursuant to Article VIII was denied on March 15, 1974. The Borough determined that Article VIII did not apply to Mr. Brady. In April, 1974, Mr. Brady began receiving Social Security disability benefits. Claimant filed the instant action alleging a

[ 84 Pa. Commw. Page 334]

    breach of the 1973 agreement. The Borough also filed an action to recover the amount of workmen's compensation benefits paid to Mr. Brady by the Commonwealth and said amount was found to be due and owing to the Borough. Claimant counterclaimed on that suit for payments under the Heart and Lung Act from October 23, 1973 to the present time. The two lawsuits were consolidated for trial and heard by the Honorable James M. Munley in the Court of Common Pleas of Lackawanna County. The Trial Court found in favor of the Borough of Dunmore in both cases. Claimant filed ...


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