Brown v. Township of Old Bridge

• Decision Date: 19 March 1999
• Court: New Jersey Superior Court
• Parties: Robert C. BROWN, Plaintiff/Appellant, v. TOWNSHIP OF OLD BRIDGE, Defendant/Respondent.

725 A.2d 1154

319 NJ Super. 476

Robert C. BROWN, Plaintiff/Appellant, v. TOWNSHIP OF OLD BRIDGE, Defendant/Respondent.

Superior Court of New Jersey, Appellate Division.

Argued February 10, 1999.

Decided March 19, 1999.

Robert C. Brown, Old Bridge, plaintiff/appellant, pro se (Ann K. Brown, attorney, on the brief).

Robert T. Clarke, Warren, for defendant/respondent (Apruzzese, McDermott, Mastro & Murphy, attorneys; Mr. Clarke, of counsel and on the brief; Robert J. Merryman, on the brief).

Before Judges KING, WALLACE and NEWMAN. The opinion of the court was delivered by WALLACE, Jr., J.A.D

This is the third appeal in this case. Plaintiff Robert C. Brown is a retired police officer of defendant Township of Old Bridge, (referred to as defendant or Township). Plaintiff contends: (1) defendant was barred from relitigating plaintiff's right to receive the collectively bargained long-term disability insurance benefits after a 1980 judicially enforced arbitration award recognized those benefits as binding against defendant; (2) the trial judge erred in reducing plaintiff's special compensation in the form of long-term disability payments by the amount of his PFRS retirement allowance because he erred in reading N.J.S.A. 40A:14-154 and the PFRS provision, N.J.S.A. 43:16A-7 "in para materia"; (3) the application of N.J.S.A. 40A: 14-154, constitutes an improper attachment, garnishment or assignment of plaintiff's special compensation in the form of long-term disability benefits; (4) N.J.S.A. 40A:14-154 is unconstitutional; (5) the trial judge erred in including cost of living adjustments (COLAs) in the calculation of plaintiff's special compensation in the form of long-term disability benefits; and (6) the trial judge erred in denying his motion to amend the complaint to include a claim for an injury plaintiff sustained in 1983. We affirm.

I

Plaintiff is a retired police officer of Township. He was employed by defendant from March 17, 1975 to August 31, 1988. Pursuant to the collective bargaining agreements negotiated by the Police Benevolent Association (PBA), plaintiff, over the years, received various benefits including long-term disability.

On September 28, 1981, plaintiff was shot in the line of duty. He returned to work, but continued to have recurring physical and psychological problems as a result of the incident. Plaintiff sought a disability retirement. On September 22, 1986, he met with the Township Council to discuss his eligibility for disability retirement benefits. Following this meeting, the Council passed a resolution providing in part:

WHEREAS, the list of requests from Patrolman Brown are as follows:

1. Full payment of salary until eligible for payments from the State Pension System.

2. Calculation of regular salary/base pay to conform with the same formula the Township of Old Bridge uses to make pension deductions.

3. Long-Term Disability Benefits pursuant to Article XII Sub. Sec. C of the Agreement between the Township of Old Bridge and the PBA Local No. 127.

4. Removal of the AEIF [Annual Earned Income Formula] provision contained in Article XII Sec. D, since the traumatic injury occurred during 1981.

5. Payment of 100% of all health benefits at the discretion of the Council, pursuant to N.J.S.A. 40A:10-23.

6. Payment of all accrued vacation, sick time, holiday and ETO time.

7. Payment of a $25,000 term life insurance policy, pursuant to Article XII Sub. Sec. H of the Agreement between the Township of Old Bridge and PBA Local No. 127.

NOW, THEREFORE, BE IT RESOLVED by the Township Council of the Township of Old Bridge that the Township Council accepts the proposal made by Patrolman Robert Brown for a Disability Retirement, and specifically grants the request for the seven (7) items enumerated above, with the condition that Patrolman Robert Brown voluntarily submit the pension papers to the State of New Jersey on or before September 28, 1986, and, on the condition, that all accrued vacation, sick, holiday and ETO time be verified by the Township Administration.

In September 1986, plaintiff applied for a disability pension with PFRS. In July 1988, PFRS approved plaintiff's application, retroactive to April 1, 1987. The amount of the pension, $14,615 per year was based on plaintiff's 1981 salary, the year plaintiff's disability arose.

Plaintiff retired from the police department on September 1, 1988. On September 19, 1988, he received his accumulated vacation and sick time benefits but not his other benefits. Plaintiff requested that defendant pay him his disability benefits. Defendant failed to pay these benefits.

As a result, on December 16, 1988, plaintiff filed a complaint against defendant seeking $2,224 per-month or $26,700 per-year (two-thirds of plaintiff's 1988 salary ($40,030 × 2/3 =$26,686.67)) in long-term disability insurance, and payment of his health insurance deductible pursuant to Article XII, section C of the then existing collective bargaining agreement. Article XII, section C of the then existing agreement, provided:

All employees will be covered by long-term disability insurance. This insurance would supplement any other benefits so that employees with long-term illnesses or serious accident [sic] (whether job connected or not) would receive a total of (2/3) their regular pay, after a waiting period of thirty (30) days. Such payments would continue until age sixty-five (65) for illness and/or life for [sic] accident.

Defendant filed an answer and separate defenses. Thereafter, defendant issued plaintiff $3,021.13 in long-term disability for the months of October, November and December 1988 ($26,700—$14,615 (PFRS disability pension) = $12,085 per year or $1,007 per month).¹ Plaintiff refused to accept that check because he believed he was entitled to a greater amount.

Plaintiff moved and defendant cross-moved for summary judgment. On July 3, 1991, partial summary judgment was granted in plaintiff's favor. The judge determined that:

the Old Bridge Township Council Resolution [in which defendant had agreed to pay plaintiff long-term disability] of September 22, 1986 ("Resolution") is a valid and enforceable agreement between [plaintiff] and [defendant]. [Plaintiff] is entitled to enforce the terms of the Resolution.

The court denied defendant's cross-motion and scheduled a trial on damages. Following trial, the judge awarded plaintiff $75,616, representing past-due, long-term disability benefits from October 1, 1988 to July 1, 1991, and $10,961.52 in prejudgment interest. Plaintiff was also awarded $2,224 per month in long-term disability payments, beginning August 1, 1991, and payable for the remainder of his life. The judge held that plaintiff was not entitled to payment by defendant of his health insurance deductible or counsel fees.

The Township appealed, and for the first time argued that the September 22, 1986, resolution was unenforceable because it was preempted by N.J.S.A. 40A:14-154. This statute provides:

If a member or officer of the municipal police department or force is permanently disabled from injuries received while in the performance of his duties, and the chief or authority in charge of such police department or force shall recommend that special compensation be granted, and a physician appointed by the governing body of said municipality shall certify as to the probable permanency of such disability, the governing body of the municipality, in their discretion, by ordinance, may provide for special compensation to said disabled member or officer, designating the amount thereof and manner of payment either in a lump sum or by an annual allowance, but such special compensation plus any pension paid and any award for workmen's compensation shall not exceed the salary payable at the time of the sustaining of the injuries. The governing body of said municipality shall include appropriate budget items and provide for the payment of such special compensation.

[ (emphasis added).]

Plaintiff filed a cross-appeal from the denial of the payment of his health insurance deductible and counsel fees. In an unpublished opinion, we held in Brown v. Township of Old Bridge (A-6352-90T2 (App.Div.)) (Brown I,) certif. denied, 133 N.J. 440, 627 A.2d 1145 (1993) that N.J.S.A. 40A:14-154 preempted the field of "special compensation" in the form of supplemental disability payments and thus, the September 22, 1986 resolution was unenforceable because such a benefit could only be awarded by ordinance. Moreover, the amount awarded exceeded the limits authorized by N.J.S.A. 40A:14-154, or the amount of plaintiff's salary at the time of the injury. Ibid. That is, plaintiff had earned $21,924 in 1981, the year of his injury, and was awarded $26,700 per year in special compensation in the form of long-term disability and $14,616 per year in PFRS disability pension, for a total of $41,316. This was $19,393 more than his salary at the time of the injury. Thus, we reversed the partial summary judgment and award of damages in favor of plaintiff and remanded for further proceedings in accordance with our opinion. Plaintiff's petition for certification to the Supreme Court was denied. Brown v. Township of Old Bridge, 133 N.J. 440, 627 A.2d 1145 (1993).

At the remand hearing, plaintiff argued that Brown I had only decided that the September 22, 1986, resolution was preempted by N.J.S.A. 40A:14-154, and thus, he was still entitled to special compensation in the form of long-term disability benefits under the collective bargaining agreement. Defendant argued that the decision preempted any action by a municipality, whether by resolution or by collective bargaining. The trial judge recognized that both its prior decision and our decision were limited to the issue of whether plaintiff was entitled to long-term disability benefits under the resolution. Nevertheless, the judge held that N.J.S.A. 40A:14-154 also preempted an award of such benefits pursuant to the collective...