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COMMONWEALTH PENNSYLVANIA v. JOHN J. KOHN (01/28/87)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 28, 1987.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, PETITIONER
v.
JOHN J. KOHN, RESPONDENT

Appeal from the Order of the Board of Claims in the case of John J. Kohn v. Commonwealth of Pennsylvania, Liquor Control Board, No. FC-551.

COUNSEL

Felix Thau, Deputy Chief Counsel, for petitioner.

Victor Dell'Alba, Dell'Alba, Heim & Lecates, for respondent.

Judges MacPhail and Palladino, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 103 Pa. Commw. Page 349]

This is an appeal by the Pennsylvania Liquor Control Board (LCB) from an order of the Board of Claims (BOC) dated December 19, 1985, awarding damages and interest to John J. Kohn pursuant to the provisions of the Heart and Lung Act.*fn1 For the reasons which follow, we reverse.

Kohn was employed by the LCB as an enforcement officer. As part of the duties of this job, Kohn was required to participate in raids upon unlicensed establishments selling alcoholic beverages and to confiscate cases of beer and liquor therefrom. On September 23, 1973, while engaged in one of these raids, Kohn developed severe chest pains, radiating to both arms and also to his jaw. These pains were diagnosed as angina pectoris resulting from coronary artery disease.

Kohn continued working, on and off, for the LCB until October 22, 1973 and asserts that since that time he has been unable to return to work.

On October 31, 1974, Kohn requested Heart and Lung Act benefits from the LCB. This request went unanswered. Thereafter, on May 19, 1975, he requested Heart and Lung Act benefits from the State Workmen's

[ 103 Pa. Commw. Page 350]

Insurance Fund. This request was also ignored. As a result, Kohn filed a Petition for Review with this Court: (1) invoking our original jurisdiction, seeking relief sounding in mandamus and asking us to compel the Chairman of the LCB to either hold a hearing on his Heart and Lung Act claim or to order compensation thereunder; or (2) invoking our appellate jurisdiction, requesting us to consider the LCB's failure to respond to his application for benefits to be a denial thereof and, thus, a reviewable adjudication.

In Kohn v. Kaplan, 31 Pa. Commonwealth Ct. 166, 375 A.2d 1356 (1977), (Kohn I), we held that neither the LCB nor its Chairman had jurisdiction to adjudicate claims which might be the obligation of the Commonwealth to pay and directed Kohn to bring his claim before the BOC.

Subsequently, Kohn filed his claim with the BOC and, on November 19, 1980, was awarded benefits. The LCB appealed therefrom and, in Pennsylvania Liquor Control Board v. Kohn, 65 Pa. Commonwealth Ct. 300, 442 A.2d 47 (1982), (Kohn II), we reversed the order of the BOC and remanded in order to allow cross-examination of Kohn's medical witness by the LCB.*fn2 On remand, and after the doctor had again been deposed, the BOC granted benefits to Kohn. It is from this order that the LCB appeals.

[ 103 Pa. Commw. Page 351]

On appeal, the LCB raises the following two issues for our disposition: (1) whether the BOC has subject matter jurisdiction over claims brought under the Heart and Lung Act; and (2) whether the record contains substantial evidence to support a finding that Kohn's injury was temporary.

Our scope of review is limited to determining whether BOC has committed any errors of law and whether findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704, Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).

We addressed the first issue in Kohn I. While the Courts of this Commonwealth have repeatedly held that objections to the lack of subject matter jurisdiction of a tribunal can never be waived, and may be raised at any time by the parties or sua sponte by an appellate court, Commonwealth v. Little, 455 Pa. 163, 314 A.2d 270 (1974); Daly v. Darby Township School District, 434 Pa. 286, 252 A.2d 638 (1969); Pennsylvania National Guard v. Workmen's Compensation Appeal Board, 63 Pa. Commonwealth Ct. 1, 437 A.2d 494 (1981), we are not persuaded that we were incorrect in Kohn I, nor has there been any change in the law (case, procedural or statutory) which would necessitate a review of our earlier position.*fn3

[ 103 Pa. Commw. Page 352]

As to the second issue, the Heart and Lung Act states, in pertinent part:

(a) . . . [A]ny enforcement officer or investigator employed by the Pennsylvania Liquor Control Board . . . 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 Commonwealth of Pennsylvania . . . his full rate of salary . . . until the disability arising therefrom has ceased. . . .

53 P.S. § 637(a) (emphasis added).

The LCB avers that temporary incapacity is a necessary element of proof in order to recover under the Act, which Kohn failed to establish. Our State Supreme Court recently reviewed the intent and parameters of the Heart and Lung Act in Cunningham v. Pennsylvania State Police, 510 Pa. 74, 507 A.2d 40 (1986). Chief Justice Nix, writing for the majority, stated:

Given the purpose of the Act, we have concluded that it was intended to cover only those disabilities where the injured employees were expected to recover and return to their positions in the foreseeable future. . . . Where a disability is of indeterminate duration and recovery is not projected in the foreseeable future, it cannot be deemed 'temporary' within the meaning of the Act. The Commonwealth has no obligation to provide compensation or to pay medical bills for permanent incapacity.

Id. at 81, 507 A.2d at 43-44 (citations omitted).

A review of the record yields no evidence in support of the BOC's determination that Kohn's injury was temporary. In fact, both Kohn and his medical witness, Dr. Lisan, testified that he was not capable of returning to work.*fn4

[ 103 Pa. Commw. Page 353]

Therefore, since the conclusion of the BOC, that Kohn suffered from a temporary disability from September

[ 103 Pa. Commw. Page 35423]

, 1973 to April 4, 1975,*fn5 is not supported by substantial evidence in the record, we must reverse.*fn6

[ 103 Pa. Commw. Page 355]

Order

And Now, January 28, 1987, the order of the Board of Claims in the above-captioned matter is reversed.

Disposition

Reversed.


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