Appeal from the Order Dated January 27, 1988, of the Commonwealth Court at No. 2045 C.D. 1986, Reversing the Order of May 22, 1986 of the Court of Common Pleas of Westmoreland County, Civil Division, at No. 3473 of 1984. 113 Pa. Commwlth. Ct. 113,
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Larsen, J., files a concurring opinion.
This is the appeal of the Borough of Latrobe (Borough) from the opinion and order of the Commonwealth Court reversing an order of the Court of Common Pleas of Westmoreland County and remanding to that court with instructions that benefits under the Heart and Lung Act*fn1 be restored to Joseph Camaione, Sr., (Appellee) until such time as an evidentiary hearing is conducted to establish whether Appellee's temporary disability has ceased. 113 Pa. Commw. 113, 536 A.2d 500.
The facts underlying this matter were stipulated to by the parties and are relatively simple. Appellee, a police officer of the Borough, suffered a work-related injury on February 5, 1975. Appellee could not return to work and began receiving Heart and Lung Act benefits because he was deemed temporarily incapacitated from performing his duties.*fn2 Appellee was also awarded worker's compensation benefits which were paid over to the Borough as a form of subrogation in accordance with the provisions of the Heart and Lung Act.
This arrangement continued until July 27, 1981, when the Borough enacted a Resolution, effective as of September 1, 1981, requiring the retirement of the two oldest police officers on the Borough Police Force, one of whom was Appellee. This action was taken pursuant to 53 P.S. Section 46190 which permits Boroughs to retire employees eligible for pensions starting with the oldest employee and following in order of age if economic reasons exist to reduce the size of the police force.
Appellee was notified that the Borough was contemplating this action and that the Resolution was, in fact, enacted. Beginning on September 1, 1981, Appellee's regular salary check issued pursuant to the Heart and Lung Act was terminated and he began receiving the worker's compensation check directly as well as a pension check which together totaled more than the salary he had been receiving pursuant to the Heart and Lung Act.
In January, 1983, however, a referee for the Worker's Compensation Board reviewed Appellee's disability claim and, following a hearing, determined that Appellee's condition was no longer total and that an adjustment to his
weekly benefits would have to be made. Because the partial disability would exist for over 500 weeks, the referee determined that a lump sum payment of $25,000.00 was in order and, accordingly, awarded this amount to Appellee which he accepted on February 22, 1983.
As a result of this action, Appellee's worker's compensation check was terminated and he continued to receive his pension check only. He now was receiving each month less than his salary had been. This situation continued for fifteen months when, on May 22, 1984, Appellee filed a complaint in Mandamus seeking to have the Borough restore his full salary under the provisions of the Heart and Lung Act. Appellee reasoned that he was entitled to his full salary as long as his disability was of a temporary nature and that he was never afforded a hearing to establish that a change in his condition had occurred. The trial court denied relief, but the Commonwealth Court reversed holding that Appellee was entitled to notice that his involuntary retirement would affect his rights under the Heart and Lung Act.
In so holding, the Commonwealth Court relied on our decision in Callahan v. Pennsylvania State Police, 494 Pa. 461, 431 A.2d 946 (1981), for the proposition that a police officer's status under the Heart and Lung Act could not be changed from temporary disability to permanent disability without a due process hearing. We accepted the Borough's petition for allowance of appeal to examine whether Callahan was properly applied in the situation where a Borough exercises its legislative prerogative under the Borough Code to control the size of its police force because of economic reasons.
When we have had occasion to review the provisions of the Heart and Lung Act, we have emphasized that this remedial legislation provides compensation for police who suffer temporary incapacity or disability in the performance of their work. The guarantee of uninterrupted income during periods of temporary ...