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

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 ...


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