
    
      OPINION ISSUED JULY 10, 1987
    
    VAN VOLUNTEER FIRE DEPARTMENT VS. STATE FIRE MARSHAL
    (CC-86-353)
    Francis M. Curnutte, III, Attorney at Law, for claimant.
    Robert D. Pollitt, Assistant Attorney General, for respondent.
   GRACEY, JUDGE:

Claimants applied for revenue allocated from the Municipal Policemen's and Firemen's Pension and Relief Funds (W.Va. Code §33-3-14d) in April 1986. It is alleged that the application and the necessary fire reports were not timely received by the State Fire Marshal. Claimant was not certified to the Office of the State Treasurer. The claimant seeks $4,575.93, the amount of funds which it would have received had it been properly certified.

Walter Smittle III, the State Fire Marshal, testified that the Van Volunteer Fire Department was not certified to receive the funds mandated by W.Va. Code Chapter 33. He stated that the Van Volunteer Fire Department failed to supply his office with the necessary information required by W.Va. Code §8-15-8a. The State Fire Marshal's office sent a duplicate application to claimant on June 12, 1986. His office also sent statements indicating that the fire reports were missing in October, 1985 and in February, 1986. The reports for August, 1985 and April and May, 1986 were never received by the State Fire Marshal's office.

Robert J. Jarrell, Assistant Chief of the Van Volunteer Fire Department, testified that he is familiar with the day-to-day activities of the claimant. He stated that he has had problems mailing documents to the State Fire Marshal's office which the Fire Marshal's office claims it has not received. He has personal knowledge concerning the application in question as he saw the receipt from the postal system indicating that the application was sent on April 23, 1986. He stated that a second application was completed and mailed, but he has no record of the mailing. There are no records of the filings of the August, 1985, or April and May, 1986 fire reports.

James Mark Long, recording secretary for the Van Volunteer Fire Department, testified that he fills out the fire reports. He stated that he filled out an application for 1986 and sent it by mail to the State Fire Marshal. After notice was received from the Fire Marshal, he completed a second application and mailed it. However, he has not record of when he mailed the second application. He stated, too, that he completed and sent the fire reports which respondent alleges it did not receive. After notice was received, he mailed the fire reports a second time. Mr. Long has been recording secretary for six years. This is the first instance, to his knowledge, since he has been the recording secretary, that the funds were not received by the claimant.

It is the opinion of the Court that it cannot, in good conscience, deny these funds to the claimant. The claimant has shown that it made a good faith effort to comply with the regulations of W.Va. Code §8-15-8a. The Court, therefore, makes an award to the claimant in the amount of $4,575.93.

Award of $4,575.93.  