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JOSEPH CAMAIONE v. BOROUGH LATROBE (01/27/88)

decided: January 27, 1988.

JOSEPH CAMAIONE, SR., APPELLANT
v.
BOROUGH OF LATROBE, APPELLEE



Appeal from the Order of the Court of Common Pleas of Westmoreland County in the case of Joseph Camaione, Sr. v. Borough of Latrobe, No. 3473 of 1984.

COUNSEL

Vincent J. Quatrini, Jr., for appellant.

James E. Kelley, Jr., with him, Gene E. McDonald, Lightcap, McDonald, More & Mason, for appellee.

Judges MacPhail and Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 113 Pa. Commw. Page 114]

Joseph Camaione, Sr. (Appellant) has appealed from an order of the Court of Common Pleas of Westmoreland County (trial court) which dismissed his complaint in mandamus. For the reasons which follow, we reverse the trial court's order and remand to that court to direct the reinstatement of Appellant's benefits until such time as it has been determined in an evidentiary hearing that Appellant's temporary disability has ceased.

Joint stipulations of fact filed in this case*fn1 reveal that Appellant suffered a work-related injury on February 5,

[ 113 Pa. Commw. Page 1151975]

, while employed as a police officer by the Borough of Latrobe (Borough). From the date of his injury to September 1, 1981, Appellant received both workmen's compensation benefits and a salary supplement (Heart and Lung Benefits) pursuant to Section 1 of the Act of June 28, 1935 (Act), P.L. 477, as amended, 53 P.S. ยง 637.

Effective September 1, 1981, the Borough involuntarily retired Appellant for economic reasons and terminated payment of his Heart and Lung benefits and began monthly payments of Appellant's retirement benefits. Appellant continued to receive his monthly workmen's compensation benefits until January, 1983, when following a referee's hearing, Appellant's condition was determined to have changed from total to partial disability and his benefits were reduced to $63.00 per week. The referee also found that the partial disability would remain for 500 weeks and commuted his entitlement to a $25,000.00 lump sum which Appellant received on approximately February 22, 1983.

Appellant's complaint in mandamus was filed in the trial court on May 22, 1984, and was dismissed by that court on May 22, 1986. The instant appeal followed.

Appellant first argues that the termination of his Heart and Lung benefits was not proper because he was not first given notice and a hearing on the matter.

Our Supreme Court dealt with a similar issue in Callahan v. Pennsylvania State Police, 494 Pa. 461, 431 A.2d 946 (1981), which also involved a police officer's claim that his Heart and Lung benefits had been improperly terminated. In Callahan, the state police medical officer and an official in the State Workmen's Insurance Fund unilaterally determined that Mr. Callahan's ...


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