Nuce v. Board of Trustees for the City Pension Fund for Firemen & Policemen in Miami Beach

District Court of Appeal of Florida

Nuce v. Board of Trustees for the City Pension Fund for Firemen & Policemen in Miami Beach

246 So. 2d 610, 1971 Fla. App. LEXIS 6821

CourtDistrict Court of Appeal of Florida

DecidedApril 13, 1971

DocketNo. 70-859

StatusPublished

Cited by10 cases

This text of 246 So. 2d 610 (Nuce v. Board of Trustees for the City Pension Fund for Firemen & Policemen in Miami Beach) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Nuce v. Board of Trustees for the City Pension Fund for Firemen & Policemen in Miami Beach, 246 So. 2d 610, 1971 Fla. App. LEXIS 6821 (Fla. Ct. App. 1971).

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Opinion

BARKDULL, Judge.

Involved in this case is the validity of a final order of the circuit court, denying a petition for certiorari seeking to review certain actions of the appellee in denying appellants’ request for a disability pension. The point, as framed by the appellants, is as follows:

“Whether the lower court properly denied the petition for writ of certiorari to the Pension Board when all the medical evidence indicated that the petitioners were totally and permanently disabled from doing the usual and ordinary work of a fireman hut the Pension Board refused the disability pensions on the ground that the petitioners were, capable of doing some work.”

There were no provisions in the Special Act¹ and supplements thereto creating the pension fund involved in this case, which provided for retirement for partial disability. The evidence before the Board was in conflict, but it was apparent that the appellants could do (and had been doing for a period in excess of ten years) certain designated functions required of the class to which they belonged [Fireman I]. Until such time as the statute is changed, as long as an employee of the City is able to do some of the duties required to be done in his job classification; the employing authority is willing to permit the employee to perform limited duty with no reduction in pay [Personnel Board of City of Miami Beach v. Majewski, Fla.App.1968, 212 So.2d 888]; the employee not being totally disabled to do all of the functions provided for in his classification, he is not entitled to retirement. Hubbard v. Pueblo Firemen’s Pension Fund, 150 Colo. 495, 374 P.2d 492; 62 C.J.S. Municipal Corporations § 614(2), p. 1275.

The appellee has cross-appealed and assigned as error the failure of the trial court to dismiss the certiorari proceedings because the City of Miami Beach was not made a party-respondent thereto, contending it was a necessary or indispensable party. We find this position not to be well taken, because the provisions of the Special Act gives the appellee the responsibility for the administration of the fund, and if it finds an employee to be totally and permanently disabled its action in this regard entitles him to receive benefits from the fund.² There was no necessity for the City to be a party.

[612]*612Therefore, for the reasons above stated, the final order here under review be and the same is hereby affirmed.

Affirmed.

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BARKDULL, Judge.

Involved in this case is the validity of a final order of the circuit court, denying a petition for certiorari seeking to review certain actions of the appellee in denying appellants’ request for a disability pension. The point, as framed by the appellants, is as follows:

“Whether the lower court properly denied the petition for writ of certiorari to the Pension Board when all the medical evidence indicated that the petitioners were totally and permanently disabled from doing the usual and ordinary work of a fireman hut the Pension Board refused the disability pensions on the ground that the petitioners were, capable of doing some work.”

There were no provisions in the Special Act¹ and supplements thereto creating the pension fund involved in this case, which provided for retirement for partial disability. The evidence before the Board was in conflict, but it was apparent that the appellants could do (and had been doing for a period in excess of ten years) certain designated functions required of the class to which they belonged [Fireman I]. Until such time as the statute is changed, as long as an employee of the City is able to do some of the duties required to be done in his job classification; the employing authority is willing to permit the employee to perform limited duty with no reduction in pay [Personnel Board of City of Miami Beach v. Majewski, Fla.App.1968, 212 So.2d 888]; the employee not being totally disabled to do all of the functions provided for in his classification, he is not entitled to retirement. Hubbard v. Pueblo Firemen’s Pension Fund, 150 Colo. 495, 374 P.2d 492; 62 C.J.S. Municipal Corporations § 614(2), p. 1275.

The appellee has cross-appealed and assigned as error the failure of the trial court to dismiss the certiorari proceedings because the City of Miami Beach was not made a party-respondent thereto, contending it was a necessary or indispensable party. We find this position not to be well taken, because the provisions of the Special Act gives the appellee the responsibility for the administration of the fund, and if it finds an employee to be totally and permanently disabled its action in this regard entitles him to receive benefits from the fund.² There was no necessity for the City to be a party.

[612]*612Therefore, for the reasons above stated, the final order here under review be and the same is hereby affirmed.

Affirmed.

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246 So. 2d 610, 1971 Fla. App. LEXIS 6821, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nuce-v-board-of-trustees-for-the-city-pension-fund-for-firemen-policemen-fladistctapp-1971.

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