Appeal from the Order of the Court of Common Pleas of Delaware County in case of Zita Lang v. County of Delaware, No. 82-10935.
Alexander A. Di Santi, Richard, Di Santi, Hamilton, Gallagher & Paul, for appellant.
Harry J. Bradley, Assistant County Solicitor, with him, Francis P. Connors, County Solicitor, for appellee.
Judges Rogers, Craig and Doyle, sitting as a panel of three. Opinion by Judge Doyle. Judge Williams, Jr., did not participate in the decision in this case.
[ 88 Pa. Commw. Page 453]
This is an appeal by Zita Lang (Plaintiff) from a decision and order of the Court of Common Pleas of Delaware County sustaining preliminary objections in the nature of a demurrer and dismissing Plaintiff's complaint. Plaintiff is the widow of Ernest L. Lang. Mr. Lang had been employed by the County of Delaware
[ 88 Pa. Commw. Page 454]
(County) as a county park police officer. On December 10, 1978 Mr. Lang, while attempting to foil an armed robbery, suffered gun shot wounds from which he died that same evening. Plaintiff sought from the County a $25,000.00 death benefit, said benefit provided by Section 1 of the Act of June 26, 1976, P.L. 424, as amended, 53 P.S. § 891 (Act 101).
When Plaintiff failed to receive the $25,000.00 death benefit she filed a writ of mandamus in the common pleas court seeking an order that the County be compelled to pay the money. The County filed preliminary objections in the nature of a demurrer alleging that Plaintiff's complaint failed to state a claim upon which relief in mandamus can be granted because
1. Defendant is not obligated to pay Plaintiff $25,000.00 until Defendant has itself received said sum from the Commonwealth; and
2. Plaintiff's claim for death benefits on account of her decedent is sufficiently questionable that relief in mandamus is inappropriate.
The trial court sustained the preliminary objections and dismissed the complaint. This appeal ensued.
The County maintains that under Act 101 it has no duty to pay any death benefit until it first receives the money from the Commonwealth. Therefore, it argues that mandamus is inappropriate to compel payment. In order to understand at what point the County's duty to make payment arises (if in fact any duty is found to exist) we must examine Section 1 of Act 101 as it was originally enacted and ...