Appeal from the Order of the Court of Common Pleas of Philadelphia County, in the case of James F. Rossmaier v. Civil Service Commission of City of Philadelphia, No. 205 October Term, 1986.
William L. Foley, Jr., with him, Thomas F. McDevitt, Thomas F. McDevitt, P.C., for appellant.
Maria Terpolilli, with her, Carlton L. Johnson, Chief Assistant City Solicitor, and S. Kurland, City Solicitor, for appellee.
Judge MacPhail, and Senior Judges Barbieri and Kalish, sitting as a panel of three. Opinion by Senior Judge Barbieri. Judge MacPhail dissents.
[ 119 Pa. Commw. Page 251]
James F. Rossmaier, Petitioner, seeks review of the order of the common pleas court of Philadelphia which affirmed an order of the Civil Service Commission of the City of Philadelphia (Commission), denying Claimant's appeal under Philadelphia Civil Service Regulation 32.11 from a determination that he perform limited duty as of March 4, 1986.
Petitioner Incurred an injury on June 26, 1985 while serving as a fire fighter in the employ of the City of Philadelphia (City). The injury was to his back and he was provided full wage compensation during the ensuing disability under Civil Service Regulation 32. Claimant also filed a claim petition with the workmen's compensation authorities, seeking to establish liability there, but asking only for a suspension in light of the fact that full wages were still being paid during Petitioner's disability. The City, acknowledging service-connected disability, filed a Notice of Compensation Payable with the compensation authorities, whereupon the referee, on Petitioner's request, disposed of the pending Claim Petition with the following referee's order:
AND NOW, this 6th day of March, 1986, based on the filing of a Notice of Compensation Payable and request of Claimant's counsel, the Claim Petition is hereby marked 'Withdrawn'.
It is noted by the referee that no witnesses were called. The decision was dated, as in the order, March 6, 1986. On March 4, 1986, however, Petitioner had been ordered
[ 119 Pa. Commw. Page 252]
by the City's compensation clinic to return to limited duty. Petitioner refused and exercised his option to appeal to the Commission as provided in Civil Service Regulation 32.11. R.R. 17(a).*fn1 Following a hearing on August 10, 1986, Petitioner's appeal was denied by the Commission. At that hearing, Petitioner offered no evidence, but simply relied upon its contention that admission of liability in the workmen's compensation proceedings and continuing to make payments therein at the total disability rate acted as a collateral estoppel in the Civil Service case. The collateral estoppel contention was rejected by the Commission on the ground that the authorities offered in support thereof had to do with the issue of service connection, which was not an issue here. Rather the issue before it, the Commission, was whether under Civil Service Regulation 32.11 an order to return to limited duty could be enforced in that Claimant had ...