          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William J. Perroz,                            :
                             Appellant        :
                                              :   No. 1133 C.D. 2015
               v.                             :   Argued: April 13, 2016
                                              :
Fox Chapel Borough                            :

BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE ROBERT SIMPSON, Judge
               HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge

OPINION
BY JUDGE SIMPSON                              FILED: July 13, 2016

               In this appeal, William J. Perroz (Perroz) asks whether the Court of
Common Pleas of Allegheny County1 (trial court) erred in affirming a decision of
the Fox Chapel Borough Council (Borough Council) that denied his application for
a disability pension benefit. Perroz argues the trial court erred in: (1) upholding
Borough Council’s denial of his application for a disability pension benefit; (2)
failing to find Borough Council violated his constitutional due process rights by
not providing a neutral and detached hearing officer at his disability pension
review hearing; and, (3) failing to find Borough Council’s denial of his application
for a disability pension benefit violated public policy. Upon review, we affirm.




      1
          The Honorable Michael A. Della Vecchia presided.
                                    I. Background
             Before the trial court, the parties stipulated to the following facts. Fox
Chapel Borough (Borough) hired Perroz as a police officer in August 1990. He
remained employed by the Borough until his honorable discharge in March 2014.


             In 2010, Perroz suffered an on-duty injury to his right shoulder while
apprehending a suspect. The injury necessitated medical treatment, and Perroz was
unable to work as a police officer for an extended period. Perroz underwent two
surgeries on his right shoulder in 2011 and 2012. More particularly, he underwent
a rotator cuff repair on his right shoulder in 2011 (first surgery).


             Thereafter, Perroz suffered a tear in his deltoid at the repair site as
physical therapy progressed in his efforts to return to work as a police officer. He
underwent a deltoid repair in 2012 (second surgery).           Dr. James P. Bradley,
Perroz’s treating physician, opined that, as of August 2012, Perroz was unable to
return to his job as a full-time police officer.


             In March 2014, a workers’ compensation judge approved a
compromise and release agreement. The Borough then proceeded with Perroz’s
removal based on a physical injury that precluded his return to work. Ultimately,
the Borough honorably discharged Perroz by reason of disability in March 2014.
Through a letter from Perroz’s then attorney to Borough Council, Perroz applied
for a disability pension benefit.


             Shortly thereafter, the Borough’s Pension Plan Administrator (Plan
Administrator) acknowledged receipt of the letter and addressed the applicable

                                            2
deadlines under the Borough’s Police Pension Plan (Plan). The Plan Administrator
also directed Perroz to the relevant Plan provisions, including the definition of
“Total and Permanent Disability” requiring that it “qualifies the Participant for
federal social security disability benefits.” Joint Stipulation of Facts at ¶10 (citing
Certified Record (C.R.), Tab 1, Ex. 2); Reproduced Record (R.R.) at 31. The letter
also stated:

               The information submitted by [Perroz], and that which relates
               to the prior proceedings under the Heart and Lung Act,[2] does
               not appear to address whether [Perroz] qualifies for ‘federal
               social security disability benefits.’     Please provide any
               information or documents relevant to this issue. As stated
               above, any additional information may be submitted by March
               27, 2014, or you may request a reasonable extension of time for
               this purpose. Upon review of this letter, please notify me of
               whether [Perroz] will be submitting additional information
               and/or requesting more time to do so.

Joint Stipulation of Facts at ¶11 (citing C.R., Tab 1, Ex. 2); R.R. at 32. Perroz’s
attorney submitted a letter in furtherance of his application for disability pension
benefits and included three reports authored by Dr. Bradley.


               In May 2014, the Plan Administrator issued a determination that
denied Perroz’s application for a disability pension benefit. The determination
quoted the definition of “Total and Permanent Disability” contained in Article I,
Section 1.34 of the Plan and summarized Dr. Bradley’s April 2014 report. Section
5.04 of the Plan vests the Plan Administrator with sole discretion to determine
whether participants qualify for disability pension retirement. Section 5.02 of the


      2
          Act of June 28, 1935, P.L. 477, as amended, 53 P.S. §§637–38.



                                               3
Plan states the “Disability Retirement Benefit shall equal 50% of the Member’s
Salary at the Time the Disability was incurred” (basic rate of pay during the year
the disability occurred, Section 1.22 of the Plan), “provided that any member who
receives benefits for the same injuries under [federal Social Security Disability]
shall have the Participant’s disability benefits offset or reduced by the amount of
such benefits.” Joint Stipulation of Facts at ¶16 (citing C.R., Tab 1, Ex. G); R.R. at
32.


             The disability pension Perroz applied for and which the Borough
denied would encompass approximately 16 months, March 18, 2014 through
August 2015, when Perroz’s deferred vested pension benefit would begin. Perroz
did not apply for federal Social Security Disability benefits because he did not
believe he was eligible. Joint Stipulation of Facts at ¶18 (citing C.R., Tab 1 at 24,
29); R.R. at 33.


             The Plan defines “Total and Permanent Disability” as “a condition of
physical or mental impairment due to which a participant is unable to perform the
usual and customary duties of [e]mployment, which is reasonably expected to
continue to be permanent for the remainder of the Participant’s lifetime and which
qualifies the Participant for federal social security disability benefits.”      Joint
Stipulation of Facts at ¶19 (citing C.R., Tab 1, Exs. 1, G); R.R. at 33 (emphasis
added).


             The Borough and the Police Department negotiated and entered into a
Collective Bargaining Agreement (CBA) in September 2013, which covered the



                                          4
period from January 1, 2014 through December 31, 2017.                     The 2013 CBA
specifically addresses disability pension benefits through the following provision:

               5. PERMANENT DISABILITY PENSION BENEFITS

               Disability Pension Plan benefits shall begin on the date when a
               pension plan participant is determined by the Plan
               Administrator to be incapacitated due to total and permanent
               disability as defined in the pension plans, even if Extended Sick
               Leave has not been exhausted. Disability Pension Plan benefits
               shall be in accordance with the provisions set forth in the
               Pension Plan for Police.

Joint Stipulation of Facts at ¶21 (citing C.R., Tab 1, Ex. I); R.R. at 33-34. The
CBA also states: “Each Police Officer shall be entitled to a pension following
retirement or permanent disability, subject to the terms and conditions set forth in
the official Police Pension Plan of the Borough.” Joint Stipulation of Facts at ¶22
(citing C.R., Tab 1, Ex. I); R.R. at 34.


               During his employment with the Borough, Perroz served on the police
negotiation team every year. Perroz testified that the police bargaining unit never
attempted to change the disability definition contained in the Plan.


               At all relevant times, the Plan received state aid. Perroz contended the
Borough’s receipt of state aid invoked the application of the Municipal Police
Pension Law,3 commonly known as Act 600.




      3
          Act of May 29, 1956, P.L. 1804, as amended, 53 P.S. §§767-778.



                                               5
               Perroz sought review of the Plan Administrator’s denial of his
disability pension application. A hearing ensued at which both Perroz and the Plan
were represented by counsel. The Borough hired Ira Weiss, Esquire, to serve as
hearing officer. After the hearing, both parties submitted proposed findings of fact
and conclusions of law. Thereafter, Borough Council enacted Resolution 600,
which denied Perroz’s appeal and sustained the decision of the Plan Administrator
denying Perroz’s application for a disability pension. Attached to Resolution 600
were the hearing officer’s findings of fact, conclusions of law and adjudication.
Perroz appealed Borough Council’s decision to the trial court.


               After briefing and oral argument, the trial court issued an order
dismissing Perroz’s appeal and affirming Borough Council’s decision. In its order,
the trial court adopted the parties’ joint stipulation of facts.   It explained the
definition of “disability” in the CBA between Borough Council and its Police
Department was binding and the definition of “disability” in Act 600 was not
binding. See Norcini v. City of Coatesville, 915 A.2d 1243 (Pa. Cmwlth. 2007);
Breeden v. Borough of Crafton, No. SA 11-000582 (C.C.P. Allegheny 2012),
aff’d, 57 A.3d 222 (Pa. Cmwlth. 2012). Perroz appealed to this Court, and the trial
court directed him to file a concise statement of the errors complained of on
appeal, which he did.


               Thereafter, the trial court issued an opinion pursuant to Pa. R.A.P.
1925(a).     Initially, the trial court explained, because this was an appeal of a
decision under the Local Agency Law,4 its review of Borough Council’s decision

      4
          2 Pa. C.S. §§551–555; 751–754.



                                           6
was limited. Where, as here, a full and complete record is made before Borough
Council, the trial court was required to affirm the adjudication unless it found the
adjudication was in violation of the constitutional rights of the appellant, or not in
accordance with law, or the provisions of Subchapter B of Chapter 5 (relating to
practice and procedure of local agencies) were violated in the proceedings before
Borough Council, or any finding of fact made by Borough Council and necessary
to support its adjudication was not supported by substantial evidence. Section
754(b) of the Local Agency Law, 2 Pa. C.S. §754(b).


             Here, the trial court explained, Perroz did not specify any error of law
or unsupported finding of fact. The trial court observed that Perroz’s application
for a disability pension was denied based on his failure to meet the Plan’s
definition of “Total and Permanent Disability” as defined in the parties’ CBA, an
agreement Perroz negotiated with other members of the police bargaining unit
while he was employed as a Borough police officer for two decades.


             The trial court explained the 2013 CBA states that each police officer
shall be entitled to a pension following retirement or permanent disability, subject
to the terms and conditions set forth in the Plan. Further, the Amended Police
Pension Plan, adopted by the Borough in 1968, defines Total and Permanent
Disability as “a condition of physical or mental impairment due to which a
Participant is unable to perform the usual and customary duties of [e]mployment,
which is reasonably expected to continue to be permanent for the remainder of the
Participant’s lifetime and which qualifies the Participant for federal social security




                                          7
disability benefits.” Tr. Ct., Slip Op., 8/20/15, at 9 (quoting Joint Stipulation of
Facts at ¶19; R.R. at 33) (emphasis added).


              Ultimately, the trial court determined that the definition of disability
in the CBA was binding and further that the definition of disability in Act 600 was
not binding. See Norcini; Breeden. The trial court stated Perroz, along with his
police department bargaining unit, negotiated and accepted the disability pension
standard that he now claimed to be illegal. The trial court found no illegality or
denial of constitutional rights, and it declined Perroz’s request to rewrite the CBA
between Borough Council and its Police Department.


              This matter is now before us for disposition.


                                         II. Issues
              On appeal,5 Perroz states three issues. First, he argues the trial court
erred in upholding Borough Council’s denial of his application for disability
pension benefits. Next, he maintains the trial court erred in failing to find Borough
Council violated his constitutional due process rights by not providing a neutral
and detached hearing officer at his disability pension review hearing. Finally, he
contends the trial court erred in failing to find Borough Council’s denial of his
application for disability pension benefits violates public policy.


       5
         Our review is limited to determining whether an error of law was    committed, whether
necessary findings of fact were supported by substantial evidence, whether   constitutional rights
were violated, and whether the procedure before the local agency was         contrary to statute.
Mulberry Mkt. v. City of Phila., Bd. of License & Inspection Review,         735 A.2d 761 (Pa.
Cmwlth. 1999).



                                              8
                                   III. Discussion
                            A. Definition of “Disability”
                                   1. Contentions
             Perroz first argues Borough Council and the trial court erred in
denying his application for disability pension benefits by failing to take into
account the controlling and prevailing law as set forth in Ridley Park Police v.
Borough of Ridley Park, 524 A.2d 998 (Pa. Cmwlth. 1987). He contends the main
issue here is whether he was disabled and what the terms “disabled” or “disability”
mean with respect to the disability pension plan.       Perroz asserts Ridley Park
decided this issue in 1987, and it controls here. According to Perroz, Ridley Park
provided a roadmap for future courts to follow in deciding such issues.          In
following Ridley Park, Perroz maintains, this Court should find he was disabled
and was entitled to benefits.


             Perroz asserts that in Ridley Park, the borough and the Fraternal Order
of Police (FOP) entered into negotiations for a new CBA and reached an impasse
over the definition of “disability” for purposes of pension entitlement. The CBA
stated that a police officer was entitled to a disability pension if the officer was
“permanently and totally disabled from performing police work for the [b]orough.”
Id. at 999. The FOP wanted to retain that language in the parties’ new CBA, while
the borough insisted disability be defined as “the inability to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment.” Id. An arbitration panel found in favor of the borough. The
FOP appealed to the common pleas court. The common pleas court struck down
the panel’s definition, and the Borough appealed to this Court on the basis that Act
600 did not prohibit such a definition of disability.


                                           9
             Section 1 of Act 600, 53 P.S. §767, authorized the borough to
establish a police pension and prescribe its terms and conditions. To that end, the
pension plan was governed by the Borough Code. Section 1190(a)(1) of the
Borough Code provided: “No person employed in any police … force of any
borough shall be suspended, removed or reduced in rank except for the following
reasons … [p]hysical or mental disability affecting his ability to continue in
service, in which cases the persons shall receive an honorable discharge from
service ….” 8 Pa. C.S. §1190(a)(1).


             Perroz maintains the borough in Ridley Park argued that police
officers covered under the Pennsylvania Municipal Retirement System (PMRS)
could retire on a disability pension only if they were unable to engage in any
gainful employment, and the PMRS definition of disability should apply to
borough officers as well. Perroz maintains this Court rejected that assertion, citing
Crawford v. Borough of Lewisburg, 401 A.2d 385 (Pa. Cmwlth. 1979), in which
this Court interpreted the language “affecting his ability to continue in service” in
the Borough Code to mean that the legislature “intended the disability to be one
which rendered the officer incapable of performing his normal duties
permanently.” Id. at 388 (emphasis added). Thus, Perroz asserts, the Court in
Ridley Park concluded that, because the Borough Code controlled, any other
definition would be inappropriate.


             Perroz argues the pertinent language in Act 600 provides that a
borough employing three or more full-time police officers “shall … establish … a
police pension fund …. Such fund shall be under the direction of the governing



                                         10
body of the borough … and applied under such regulations as such governing body
… may prescribe for the benefit of such members of the police force as shall
receive honorable discharge therefrom by reason of age and service, or disability.”
53 P.S. § 767(a)(1), (2) (emphasis added). Perroz asserts Section 1 of Act 600
authorized the borough in Ridley Park to establish a police pension and prescribe
its terms and conditions.


             Perroz asserts, as this Court stated in Ridley Park, the clear language
of Act 600 mandates that all police officers honorably discharged for disability be
eligible to receive a pension.    Perroz contends Act 600 does not permit the
Borough to prescribe its own regulations that would redefine pension eligibility.
Thus, as long as the Borough may honorably discharge officers who cannot
physically perform police work and accept state aid for funding such pensions, it
may not deny an officer his pension simply because he is able to obtain other
gainful employment.


             Perroz points out that this Court distinguished the central holdings of
Ridley Park in Paupst v. Pennsylvania Municipal Retirement Board, 788 A.2d
1067 (Pa. Cmwlth. 2001). The Court in Paupst was tasked with assessing a
scenario, on its face, akin to the ones in Ridley Park and the instant appeal. A
dispute arose as to the applicable definition of “disability,” and whether its
meaning was one based on the officer’s inability to undertake police work or his
inability to undertake any “gainful employment.”        Id. at 1070.   The former
definition was based on the Borough Code and CBA, while the latter was based on
a separate, binding agreement between the township and PMRS. This Court held



                                        11
that because the officer, through his employer, was bound by an agreement
between the township and the PMRS, the PMRS definition of “disability”
controlled. Id. at 1070-71. However, Perroz contends, absent a scenario such as
that in Paupst, the Ridley Park model controls; the definition of “disability” is
governed by the Borough Code and the terms of the CBA.


             Just as in Ridley Park, Perroz asserts, his disability pension eligibility
is governed by the Borough Code and the terms of the CBA. See 8 Pa. C.S. §1190;
R.R. at 33-34. Perroz argues he was injured in the line of duty, resulting in his
undisputed and indefinite inability to return to work as a police officer. R.R. at 30-
31. As a result, he was honorably discharged for physical disability. R.R. at 31.
Perroz does not claim that he is unable to obtain gainful employment, and, more
specifically, does not claim that he would qualify for federal social security
disability benefits. However, he argues, it is not the language of the Plan that
controls, but the mandates of the Borough Code. According to the Borough Code
and Act 600, interpreted by this Court in Ridley Park, Perroz, who was honorably
discharged for physical disability, is entitled to a disability pension.


             Perroz anticipates the Borough will argue there are no statutory
restrictions on how “disability” may be defined for purposes of pension
entitlement. Therefore, the Borough will assert it may prescribe regulations that
would render some officers, honorably discharged from service pursuant to Section
1190 of the Borough Code, ineligible for pension benefits. Perroz maintains this is
in direct contravention of Pennsylvania law, and no Pennsylvania court ratified
such action in this context. See Ridley Park.



                                           12
             Perroz further points out that the hearing officer relied on Norcini. He
asserts the issue in that case was not whether the officer qualified for a disability
pension under the pension plan language, but rather whether the officer could
reject the disability pension he was offered in favor of a greater retirement pension
provided by statute.    Perroz contends the two factual scenarios and the legal
questions posed by the two cases are different. He argues the distinction between
that case and the instant one is clear, especially as the Court in Norcini did not
distinguish, or even mention, its earlier precedential decision in Ridley Park.


                                     2. Analysis
             “[I]t is beyond peradventure that [police] pensions are a mandatory
subject of collective bargaining. …” Borough of Mahanoy City v. Mahanoy City
Police Dep’t, 948 A.2d 239, 242 (Pa. Cmwlth. 2008) (quoting Wilkes-Barre Twp.
v. Pa. Labor Relations Bd., 878 A.2d 977, 983 (Pa. Cmwlth. 2005)); see also
Norcini (police officer did not have individual right to reject disability pension
provisions set forth in negotiated CBA in favor of allegedly greater retirement
benefit provided by statute).


             In addition, it is well-settled that “parties may not avoid limitations in
a CBA, claiming that [they] conflicted with the law, after they voluntarily
negotiated and agreed to the contracted provisions.” Norcini, 915 A.2d at 1246
(citing Grottenthaler v. Pa. State Police, 410 A.2d 806, 809 (Pa. 1980) (“a
municipality [can]not avoid the effect of a term of the [CBA] it had entered into,
by asserting that the contract provision was in violation of State law.”)); see also
Pa. State Troopers Ass’n v. Pa. State Employes’ Ret. Bd., 677 A.2d 1329, 1331
(Pa. Cmwlth. 1996) (“[p]etitioners are bound by the total result negotiated by the

                                         13
union on their behalf and cannot selectively choose or reject aspects of a negotiated
agreement as they would wish. … [T]he ... [a]ward is binding upon [p]etitioners,
even though calculation of [the] … pensions pursuant to the [a]ward formula yields
a less beneficial result than the Retirement Code[6] formula.”).


               Similarly, in Pittsburgh Joint Collective Bargaining Committee v. City
of Pittsburgh, 391 A.2d 1318, 1322-23 (Pa. 1978), our Supreme Court explained:

                     To permit an employer to enter into agreements and
               include terms ... which raise the expectations of those
               concerned, and then to subsequently refuse to abide by those
               provisions on the basis of its lack of capacity would invite
               discord and distrust and create an atmosphere wherein a
               harmonious relationship would virtually be impossible to
               maintain.

                     Good faith bargaining would require that questions as to
               the legality of the proposed terms of a [CBA] should be
               resolved by the parties to the agreement at the bargaining stage.


               Moreover, in Fraternal Order of Police, E.B. Jermyn Lodge No. 2 v.
Hickey, 452 A.2d 1005, 1007 (Pa. 1982), our Supreme Court stated: “To permit a
public employer to secure an advantage in the bargaining process by agreeing to a
term and subsequently avoid compliance by belatedly asserting that term’s
illegality is equally inimical to the integrity of the bargaining process and
undermines the harmonious relationship it was designed to foster.” See also City
of Allentown v. Int’l Ass’n of Fire Fighters Local 302, 122 A.3d 492, 506 (Pa.
Cmwlth. 2015) (en banc) (“[T]he City cannot now avoid the application of the


      6
          State Employes’ Retirement Code, 71 Pa. C.S. §§5101-5956.



                                             14
purchase of time provisions of the CBA with respect to [firefighters who already
retired under the CBA], but it properly contested its inclusion in the new CBA and
its application to current employees in its appeal of the panel’s award issued in the
instant interest arbitration proceedings.”); Borough of Mahanoy City, 948 A.2d at
242-43 (“A public employer who voluntarily agrees to a provision in a [CBA] may
not later object to that provision on the basis of illegality.”). These principles
apply regardless of whether it is the union rather than the public employer which
seeks to disavow its bargain. Norcini.


               Indeed, in Norcini, we applied the principles outlined above in a
situation similar to that presented here. There, Norcini, a retired police officer,
challenged the city’s calculation of his service-connected disability pension on the
ground that the Third Class City Code7 provided for a greater benefit than that
provided for in the parties’ negotiated CBA. In rejecting Norcini’s appeal, this
Court explained (with emphasis added):

                      Here, the police pension plan at issue was in place, and
               outlined in the CBA, at all times during Norcini’s employment.
               Norcini worked within the [a]ssociation’s bargaining unit and
               was employed pursuant to the provisions and conditions of the
               CBA. Moreover, the CBA was voluntarily entered into by the
               parties. Norcini was bound by and benefited from the
               provisions of the CBA throughout the course of his
               employment, and was equally bound by the provisions of the
               CBA at the time of his retirement, including any shortcomings
               and limitations.

                     If this Court were to accept Norcini’s argument,
               essentially any officer who is represented by a recognized labor
               organization which negotiates a CBA would obtain the benefits
      7
          Act of June 23, 1931, P.L. 932, as amended, 53 P.S. §§35101-39701.



                                              15
            of the CBA while employed and then upon retirement bring suit
            to compel the [c]ity to provide a greater retirement benefit if it
            was provided by a statute that existed at the time of his
            retirement, rather than being bound by the retirement provisions
            contained in the CBA that directly addressed the terms and
            conditions of his employment. Here, the police pension plan
            was in place at all times during the course of Norcini’s
            employment, was outlined in the CBA, and was voluntarily
            entered into by the [c]ity and the [a]ssociation. Neither party to
            the CBA, nor Norcini has an individual right to reject to the
            disability pension provisions set forth in the negotiated CBA.
            …

Id. at 1246-47. Nevertheless, this Court observed that there are two exceptions to
this general rule, explaining (with emphasis added):

                   While a party may not assert illegality to avoid
            compliance with a voluntarily agreed to provision of a CBA,
            this general rule does not extend to cases where a dispute is
            resolved in a decision by an arbitrator rather than through a
            CBA. Municipality of Monroeville v. Monroeville Police
            Department Wage Policy Committee, 767 A.2d 596 (Pa.
            Cmwlth. 2001). For example, in Monroeville, the parties were
            in the process of negotiating a new CBA when a dispute arose
            regarding whether municipal pension benefits could exceed
            those provided for in the statute. The parties reached an
            impasse so the dispute was submitted for arbitration. The
            arbitrators decided that the disputed provisions could be
            included in the new CBA, despite the fact that they were
            inconsistent with the statutorily defined benefits. Because it
            was the arbitrators’ decision to include the provisions in the
            CBA, rather than a joint agreement of the parties, this Court
            determined that the municipality could challenge the illegality
            of the provisions. This Court emphasizes the distinction
            between an illegality dispute involving a voluntarily entered
            into CBA and a dispute which is submitted and resolved by
            arbitration. The present controversy involves a provision of a
            voluntarily agreed to CBA, and therefore, Norcini was estopped
            from claiming that the disability pension benefit provision was
            illegal.



                                        16
                    In addition, a second exception to the general rule was
             carved out by our Pennsylvania Supreme Court in Borough of
             Ellwood City v. Ellwood City Police Department Wage and
             Policy Unit, [825 A.2d 617 (Pa. 2003)], where the Court
             explained that a [CBA] may not incorporate a provision which
             conflicts with a statutory provision if the statute expressly
             prohibits such conflicts or provides a remedy should a conflict
             arise. Unfortunately for Norcini this exception also does not
             apply.

Id. at 1246 n.4.


             Here, the parties’ 2013 CBA, which was in effect at the time Perroz
sought the disability pension benefit at issue here, states:

             5. PERMANENT DISABILITY PENSION BENEFITS

             Disability Pension Plan benefits shall begin on the date when a
             pension plan participant is determined by the Plan
             Administrator to be incapacitated due to total and permanent
             disability as defined in the pension plans, even if Extended Sick
             Leave has not been exhausted. Disability Pension Plan benefits
             shall be in accordance with the provisions set forth in the
             Pension Plan for Police.

Joint Stipulation of Facts at ¶21 (citing C.R., Tab 1, Ex. I); R.R. at 33-34. The
CBA also states: “Each Police Officer shall be entitled to a pension following …
permanent disability, subject to the terms and conditions set forth in the [Plan].”
Joint Stipulation of Facts at ¶22 (citing C.R., Tab 1, Ex. I); R.R. at 34 (emphasis
added).


             In turn, the Plan defines “Total and Permanent Disability” as “a
condition of physical or mental impairment due to which a participant is unable to
perform the usual and customary duties of [e]mployment, which is reasonably


                                          17
expected to continue to be permanent for the remainder of the Participant’s lifetime
and which qualifies the Participant for federal social security disability benefits.
…” Joint Stipulation of Facts at ¶19 (citing C.R., Tab 1, Exs. 1, G); R.R. at 33
(emphasis added). In his brief to this Court: “[Perroz] makes no claim that he is
unable to obtain gainful employment, and, more specifically, that he would qualify
for federal social security disability benefits.” Appellant’s Am. Br. at 16.


             Instead, similar to the petitioner in Norcini, Perroz seeks to avoid the
limitations on the definition of “disability” contained in the Plan and incorporated
in the CBA in favor of what he claims is the more lenient standard provided for
under Act 600 and the Borough Code. Based on Norcini, Perroz cannot do so.
More specifically, similar to Norcini, the definition of disability contained in the
Plan and incorporated into the CBA was agreed to by the Borough and the police
bargaining unit, Perroz served on the police negotiation team “every year,” and the
police bargaining unit never attempted to change the disability definition contained
in the Plan. Joint Stipulation of Facts ¶¶20-21, 23-24; R.R. at 34. Thus, as the
Hearing Officer determined:

             5. The provisions of the [Plan] regarding disability pensions
             were negotiated and agreed to through the collective bargaining
             process and were not challenged by the members of the police
             bargaining unit.

             6. Both the collective bargaining representative of the officers
             and the members of that unit as well as the Borough are bound
             by the provisions of the Plan and the Borough may not confer a
             benefit upon a police officer not provided for in the [CBA].

                                          ****




                                         18
             10. The collective bargaining unit and the Borough agreed to be
             bound by the terms of the [Plan] and specifically agreed that the
             disability pensions would be governed by the definition in the
             contract.

             11. [Perroz] is, therefore, precluded from now claiming that the
             disability language in question is contrary to law and is void.

Hr’g Officer’s Findings of Fact, Conclusions of Law & Adj., Concls. of Law Nos.
5-6, 10-11; R.R. at 297, 298.


             Further, as in Norcini neither of the exceptions to the general rule
apply here. First, like Norcini this appeal does not arise from a dispute over the
language of a CBA that was submitted and resolved by arbitration (i.e., through
interest arbitration); rather, like Norcini, this case involves a CBA reached by
voluntary agreement.       Additionally, as in Norcini, the CBA here does not
“incorporate a provision which conflicts with a statutory provision [where] the
statute expressly prohibits such conflicts or provides a remedy should a conflict
arise.” Id. at 1246 n.4 (emphasis added). Cf. Ellwood City, 825 A.2d at 622
(Court reached a different result because of Act 205’s8 explicit statutory mandate
that “in the event of an actual conflict between the statute and a collective
bargaining agreement, the statute must be given effect ....”).


             Nevertheless, Perroz asserts, based on our decision in Ridley Park, he
is entitled to the disability pension benefit here. Perroz’s reliance on Ridley Park is
misplaced.


      8
        Act 205 refers to the Municipal Pension Plan Funding Standard and Recovery Act, Act
of December 18, 1984, P.L. 1005, as amended, 53 P.S. §§895.101–895.803.



                                            19
             In particular, in Ridley Park, the borough and the FOP entered into
negotiations for a new CBA to replace an existing CBA that was set to expire.
During negotiations, the parties reached an impasse over the definition of
“disability” for purposes of pension entitlement. For several years prior to the
negotiations for the new CBA, the parties’ CBA stated a police officer was entitled
to a disability pension if the officer was “permanently and totally disabled from
performing police work for the [b]orough.” Id. at 999. The FOP maintained the
new CBA should retain that language, while the borough asserted disability should
be defined as “the inability to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment.” Id. The parties
submitted the dispute to interest arbitration.    Ultimately, an arbitration panel
determined disability was to be given the definition the borough proposed. The
FOP appealed. A common pleas court struck the award’s provision containing the
borough’s proffered definition of “disability.” On further appeal, we affirmed.


             We began by noting that the borough’s police pension fund was
established under Section 1 of Act 600.        The borough argued the language
implemented by the arbitration panel was proper and there was no language in
Section 1 of Act 600 that prohibited such a definition of disability. The borough
further asserted, in administering the pension fund, it could prescribe substantial
regulations that included defining disability as the arbitration panel did.
Responding to these assertions, we noted an arbitration award could not require a
governing body to carry out an illegal act and could only require a public employer
to do that which it could do voluntarily. We further noted that Section 1 of Act
600 stated, in pertinent part:



                                        20
             Each borough, town, and township of this Commonwealth
             maintaining a police force of three or more full-time members
             shall ... establish, by ordinance or resolution, a police pension
             fund or pension annuity.... Such fund shall be under the
             direction of the governing body of the borough, town or
             township, and applied under such regulations as such
             governing body, by ordinance or resolution, may prescribe for
             the benefit of such members of the police force as shall receive
             honorable discharge therefrom by reason of age and service, or
             disability ….

Id. (emphasis in original). Further, Section 1190 of the Borough Code provided
for removal of a police officer for, among other things, “disability affecting his
ability to continue in service, in which cases the person shall receive an honorable
discharge from service.” Id. at 1001. As to an honorable discharge for physical
disability, pursuant to Section 1190, this Court stated the legislature “intended the
disability to be one which rendered the officer incapable of performing his normal
duties permanently.”    Id. (quoting Crawford, 401 A.2d at 388).         This Court
explained:

                    Although the [b]orough may discharge police officers
             who are permanently disabled from performing police work, it
             claims that it does not have to then award these officers a
             pension as long as they are able to engage in ‘substantial
             gainful activity.’ The [b]orough admits that it cannot prescribe
             regulations which contravene Section 3 of [Act 600], 53 P.S. §
             769, setting forth age and service requirements for pension
             eligibility. However, it claims that there are no such statutory
             restrictions on how disability may be defined for the purposes
             of pension entitlement. The [b]orough thus argues that it may,
             pursuant to Section 1 of [Act 600], prescribe a regulation
             defining disability as was done in … the arbitration award. The
             [b]orough is thus contending that it may prescribe regulations
             which would render some police officers, honorably discharged
             from service pursuant to Section 1190 of [t]he Borough Code,
             ineligible for pension benefits. We disagree.



                                         21
                   The pertinent language of Section 1 of [Act 600]
            provides that a borough employing [three] or more full-time
            police officers ‘shall ... establish ... a police pension fund or
            pension annuity.... Such fund shall be under the direction of the
            governing body of the borough ... and applied under such
            regulations as such governing body ... may prescribe for the
            benefit of such members of the police force as shall receive
            honorable discharge therefrom by reason of age and service, or
            disability....’ (Emphasis supplied.)

                   The clear language of this section mandates that all
            police officers honorably discharged for age and service, or
            disability, be eligible to receive a pension. It does not permit
            the [b]orough to prescribe regulations which would redefine
            pension eligibility. Therefore, as long as the [b]orough may
            honorably discharge a police officer who is disabled from
            performing police work, it may not deny that officer a pension
            simply because he is able to obtain other employment
            constituting ‘substantial gainful activity.’

                   Indeed, if we were to accept the [b]orough’s argument
            that Section 1 of [Act 600] authorizes it to prescribe regulations
            rendering some police officers honorably discharged for
            disability ineligible to receive a pension, we would have to find
            that it could likewise do the same with regard to those police
            officers honorably discharged for age and service. This is
            because the language in Section 1 of [Act 600], authorizing
            [b]orough regulations, is equally applicable to both categories
            of honorable discharge. Certainly we cannot say that the
            Legislature intended to permit the [b]orough to withhold
            pensions from those police officers who reached the mandatory
            retirement age and who served the minimum number of years
            on the force and are, therefore, entitled to a pension under
            Section 3 of [Act 600].

Id. 1001.   Thus, we affirmed the common pleas court’s conclusion that the
arbitration panel exceeded its authority by including the challenged language in the
award.




                                        22
             Critically, unlike Ridley Park, the case presently before us does not
concern a challenge to an interest arbitration award involving the legality of a CBA
provision fashioned by an arbitration panel. Rather, in this case, Perroz seeks to
avoid the limitation on “disability” contained in the Plan and incorporated into the
CBA despite the fact that the challenged provision was negotiated and agreed to by
the Borough and the police bargaining unit, the police bargaining unit never
attempted to alter the disability definition contained in the Plan and Perroz served
on the police negotiation team “every year.” Joint Stipulation of Facts ¶¶20-21,
23-24; R.R. at 34; see also Hearing Officer’s Findings of Fact, Conclusions of Law
& Adj., Concls. of Law Nos. 5-6, 10-11. As set forth above, based on Norcini, he
may not do so.


             Further, unlike in Ridley Park, where the parties’ prior CBA stated a
police officer was entitled to a disability pension if the officer was disabled from
performing police work, here there is no indication that the definition of disability
set forth in the Plan that requires that a Plan participant qualify for federal social
security disability benefits in order to obtain a disability pension benefit,
previously differed from the current definition. Compare R.R. at 180 (2008 CBA,
covering the period from January 1, 2009 through December 31, 2013, Article XXI
(“Pension Benefits”); and R.R. at 200 (October 14, 1968 Borough of Fox Chapel
Police Pension Plan (As Amended) setting forth definition of “Total and permanent
disability”) with R.R. at 191 (2013 CBA, covering the period from January 1, 2014
through December 31, 2017, Article XIX(5) “Permanent Disability Pension
Benefits”) and R.R. at 146 (January 1, 2012 Borough of Fox Chapel Police
Pension Plan setting forth definition of “Total and Permanent Disability”); Joint



                                         23
Stipulation of Facts at ¶24; R.R. at 34 (police bargaining unit never tried to change
the Plan’s disability definition). As such, Ridley Park does not compel the result
Perroz seeks here.9


                                    B. Due Process
                                    1. Contentions
             Perroz next asserts the Borough violated his constitutional due process
rights by failing to provide a neutral and detached hearing officer. Perroz argues
he had rights with regard to his vested pension benefits, and these rights could not
be interfered with absent due process. Nevertheless, he contends he was not
afforded a detached and disinterested fact-finder. Instead, Perroz maintains, his
rights were deprived by a biased and interested party. In affirming the hearing
officer’s improper findings, Perroz argues, the trial court upheld the
unconstitutional deprivation of his property interests.


             As they are a property right, Perroz argues, an employee’s pension
rights may not be altered except by due process of law. Stuart v. Flynn, 380 F.
Supp. 424, 426 (W.D. Pa. 1974).          He maintains due process rights attach in
administrative proceedings. Kreiger v. City of Phila., Bd. of Pensions & Ret., 408
A.2d 170 (Pa. Cmwlth. 1979). Constitutional due process requires a “neutral and
detached judge in the first instance.” Ward v. Vill. of Monroeville, 409 U.S. 57,
62 (1972).     That mandate is no different when a legislative body delegates

      9
          Although in Wright v. Lower Salford Township Municipal Police Pension Fund, ___
A.3d ___ (Pa. Cmwlth., No. 1343 C.D. 2015, filed April 1, 2016), we recently applied our
holding in Ridley Park Police v. Borough of Ridley Park, 524 A.2d 998 (Pa. Cmwlth. 1987),
Wright did not involve a situation in which a party voluntarily agreed to a provision in a
collective bargaining agreement and later sought to disavow it on the basis of illegality.



                                           24
adjudicative functions to a private party. See Schweiker v. McClure, 456 U.S. 188
(1982).


             Before one may be deprived of a protected interest, whether in a
criminal or civil setting, Perroz argues, he is entitled as a matter of due process to
an adjudicator who is not in a situation “which would offer a possible temptation to
the average man as a judge … or which might lead him not to hold the balance
nice, clear and true ….” Ward, 409 U.S. at 60 (quoting Tumey v. Ohio, 273 U.S.
510, 532 (1927)) (internal citations and quotations omitted). Perroz asserts he has
a protected property interest in his disability pension benefits to which he is
entitled. See Basciano v. Herkimer, 605 F.2d 605 (2d Cir. 1978); McDarby v.
Koch, 725 F. Supp. 151 (S.D. N.Y. 1989).


             Perroz further maintains that, as interpreted in Pennsylvania, disability
retirement benefits cannot be denied without an administrative hearing that
complies with all procedural due process requirements. Kreiger. Due process
requires a fair hearing. Horn v. Twp. of Hilltown, 337 A.2d 858 (Pa. 1975).
“Fairness of course requires an absence of actual bias in the trial of cases. But our
system of law has always endeavored to prevent even the probability of unfairness.
To this end no man can be a judge in his own case and no man is permitted to try
cases where he has an interest in the outcome ….” Id. at 860.


             Here, Perroz points out, the Plan Administrator initially denied his
disability pension benefit application. He sought review of that decision, and a
hearing was held in Borough Council Chambers at the Borough Municipal



                                         25
Building. The Borough hired Ira Weiss, Esquire, a private party, to serve as
hearing officer. Perroz asserts that Weiss, therefore, had a pecuniary interest in
ruling in favor of the Borough that created at least a possible temptation to find
Perroz ineligible for his pension benefits. See Ward. Perroz argues it is likely no
coincidence that Weiss ruled in favor of the Borough, his employer for these
purposes, and against Perroz, to whom he owed nothing. Perroz acknowledges
there is no direct evidence that Weiss’ decision was the product of bias, but he
argues, even the potential temptation for Weiss to rule in the Borough’s favor and
his own pecuniary interest disqualifies him as a neutral and detached judge. Id.


             Therefore, Perroz maintains, his constitutional due process right to a
neutral and detached judge at his pension review hearing was violated, and the
Borough’s pension eligibility determination should be reversed for this reason as
well. 2 Pa. C.S. §754(b); Sparacino v. Zoning Bd. of Adjustment, City of Phila.,
728 A.2d 445 (Pa. Cmwlth. 1999) (court can reverse agency determination where
constitutional rights were violated).


             Perroz argues the trial court affirmed Weiss’ improper findings, and it
ignored this impropriety. Because the trial court based its opinion on the findings
of an unfair hearing that deprived Perroz of his rights without due process, Perroz
asserts, the trial court’s findings were also in error; thus, its findings and order
must be reversed.


                                        2. Analysis
             At the outset, there is no indication that Perroz raised this issue either
at the hearing before the hearing officer, R.R. at 66-80, or in his proposed findings

                                            26
of fact and conclusions of law submitted after the hearing. See C.R., Tab 10.
Further, in his statutory appeal to the trial court, although Perroz vaguely asserted
Borough Council’s decision “deprived [Perroz] of his constitutionally protected
property interest without the necessary due process,” Perroz made no specific
mention of the issue he now raises concerning the neutrality of the hearing officer.
C.R., Item #1 at ¶15. Section 753(a) of the Local Agency Law incorporates the
waiver doctrine by requiring all legal questions be raised before the administrative
agency hearing the appeal. See 2 Pa. C.S. §753(a); Roomet v. Bd. of License &
Inspection Review, 928 A.2d 1162 (Pa. Cmwlth. 2007). Thus, Perroz’s failure to
raise this issue before Borough Council results in waiver.


             However, even if properly preserved, we would reject Perroz’s
assertion. Indeed, we rejected a similar argument in Krenzel v. Southeastern
Pennsylvania Transportation Authority, 840 A.2d 450 (Pa. Cmwlth. 2003). There,
following a pre-termination hearing, the Southeastern Pennsylvania Transportation
Authority (SEPTA) terminated one of its employees. The employee requested a
post-termination hearing. SEPTA appointed a retired common pleas court judge to
conduct the post-termination hearing.      After the hearing and issuance of the
decision, the employee appealed to the common pleas court. The common pleas
court determined, among other things, because SEPTA selected and paid the
hearing officer to preside over a question of SEPTA’s treatment of an employee,
there was an “appearance” that the employee was deprived of a hearing before an
impartial tribunal. Id. at 453. Thus, the common pleas court remanded for a post-
termination hearing before an impartial fact-finder. On SEPTA’s appeal, this
Court held the trial court erred on this issue, stating (with emphasis added):



                                         27
      The first substantive issue is whether SEPTA’s
appointment of Judge Goldman as hearing officer violated due
process. The trial court acknowledged that it had no reason to
question Judge Goldman’s integrity and, presumably, his
impartiality. Nevertheless, the trial court held that there was an
appearance of impropriety. The trial court reasoned that [the
employee’s] right to an impartial tribunal was compromised
where, as here, the propriety of actions taken by SEPTA would
be decided by a person selected and compensated by SEPTA.
Indeed, the trial court noted that SEPTA may hire Judge
Goldman in the future, and it found the existence of this
potentially on-going employment relationship to taint [the
employee’s] post-termination hearing.

       These circumstances are present, however, in virtually
every case where an administrative hearing is conducted by the
agency to review the agency’s action. The premise of the trial
court’s holding is that SEPTA cannot review, and correct, its
own decision. However, that is the very purpose of the
administrative hearing, and we cannot presume its futility.
Canonsburg General Hospital v. Department of Health, [422
A.2d 141 (Pa. 1980)]. It has long been understood that a
combination of the functions of investigation, prosecution and
adjudication within a single agency does not violate due
process. See Withrow v. Larkin, [421 U.S. 35] (1975); State
Dental Council and Examining Board v. Pollock, [318 A.2d
910 (Pa. 1974)]. However, due process does require a
separation of functions within the agency, which is achieved
when the inconsistent functions of prosecution and adjudication
are assumed by different individuals within the agency. See,
e.g., Stone & Edwards Insurance Agency v. Department of
Insurance, [648 A.2d 304 (Pa. 1994)]; Marchionni v.
Southeastern Pennsylvania Transportation Authority, 715 A.2d
559, 563-564 (Pa. Cmwlth. 1998). Such ‘walls of division’
eliminate any ‘threat or appearance of bias.’ Lyness v. State
Board of Medicine, [605 A.2d 1204, 1209 (Pa. 1992)].

      Here, the function of prosecution was separated from the
function of adjudication. Outside counsel was hired to
represent SEPTA, and Judge Goldman was appointed to
adjudicate [the employee’s] claims. This satisfied due process.
Accordingly, we hold that the trial court erred. An appearance
of impropriety cannot be inferred from the mere fact that

                            28
                SEPTA appointed and compensated the hearing officer
                assigned to adjudicate [the employee’s] claims against SEPTA.

Id. at 454-55 (footnote omitted).


                Here, as in Krenzel, we will not infer an appearance of impropriety
from the mere fact that Borough Council appointed and compensated Attorney
Weiss to evaluate Perroz’s challenge to the Plan Administrator’s denial of his
disability pension benefit. Id. Further, as in Krenzel, the function of prosecution
was separated from the function of adjudication. To that end, Attorney Weiss
served as hearing officer to evaluate Perroz’s claims, while separate counsel
appeared on behalf of the Plan. This satisfied due process. Id.


                Moreover, while Attorney Weiss issued findings of fact, conclusions
of law and an adjudication, before approving Attorney Weiss’ decision, all
Borough Council members reviewed the record as well as Attorney Weiss’
decision and, therefore, had the opportunity to correct any perceived error.10
      10
           Indeed, Borough Council’s decision states, as relevant:

                                           RESOLUTION 600

                RESOLUTION OF THE COUNCIL OF THE BOROUGH OF FOX
                CHAPEL ADOPTING FINDINGS OF FACT, CONCLUSIONS OF
                LAW AND ADJUDICATION REGARDING [PERROZ].

                WHEREAS, a hearing was held … involving the [a]ppeal of [Perroz] from
                the denial of a disability pension by the Plan Administrator; and

                WHEREAS, Ira Weiss, Esquire, legal advisor and Hearing Officer, has
                presented proposed Findings of Fact, Conclusions of Law and
                Adjudication which have been reviewed with Council; and

                WHEREAS, all members of Council have read the transcript and exhibits.
(Footnote continued on next page…)

                                                29
               For these reasons, we conclude that, even if properly preserved, we
could not afford Perroz relief on this issue.


                                     C. Public Policy
                                     1. Contentions
               As a final point, Perroz contends public policy strongly favors a grant
of pension benefits here. He argues the Borough accepts state funding for his
participation in the Plan. Yet, he asserts, the Borough maintains sole discretion to
honorably discharge an officer, injured in the line of duty, by reason of physical
disability.    Perroz maintains this result cannot possibly be the intent of the
legislators or the officers of the Borough’s Police Department. Therefore, the
Borough’s denial of his disability pension benefits in favor of its own pecuniary
interests is against public policy, is an error of law, and should be reversed.


               Perroz asserts that, in assessing the inequity of the trial court’s
decision, it is essential to understand the nature and purpose of pension benefits for
public servants:

               Pensions are designed for the protection against economic
               insecurity, not only of the employee, but also of the employee’s

(continued…)

               NOW, THEREFORE, be it resolved and it is hereby resolved as follows:

               1. The Findings of Fact, Conclusions of Law and Adjudication submitted
               by Ira Weiss, Esquire, Hearing Officer are hereby approved.

               2. The Appeal of [Perroz] is denied and the decision of the Plan
               Administrator denying disability pension benefits is hereby affirmed. …

R.R. at 291.



                                             30
             family. One of the primary objectives in providing them is to
             induce competent persons to enter and remain in public
             employment and to render efficient service while in the
             employed publicly. It has also been said that a pension granted
             to a public employee is not a gratuity but is deferred
             compensation for services rendered.

3 MCQUILLIN MUNICIPAL CORPORATIONS §12:173.36 (3d ed.).


             Here, Perroz contends, allowing a borough to deny an officer who is
physically unable to perform police work his disability pension would violate
public policy. First, the Plan receives state funding based on the number of
officers it covers. Further, the Plan benefits from an offset of the pension for any
social security disability payments arising from the same injuries that qualify an
officer for a disability pension, so, effectively, every disability pension the
Borough grants is less than full value. He argues that dramatically less Plan
participants would qualify for federal social security disability benefits arising out
of their work injuries as compared to those who are unable to physically perform
police duties as a result of the more stringent social security disability standard.
Perroz maintains that, even if he did qualify for social security disability, his
disability pension benefits would be offset, which only profits the Plan into which
he paid for almost 24 years.


                                     2. Analysis
             As with Perroz’s claim that Borough Council’s appointment of the
hearing officer violated his due process rights, there is no indication that Perroz
raised an issue that public policy entitled him to the disability pension benefit he
seeks either at the hearing before the hearing officer, R.R. at 66-80, or in his


                                         31
proposed findings of fact and conclusions of law submitted after the hearing. See
C.R., Tab 10. Further, Perroz did not raise this issue in his statutory appeal to the
trial court. C.R., Item #1. Thus, this issue is waived. 2 Pa. C.S. §753(a); Roomet.


              Nevertheless, even if not waived, Perroz’s argument fails. To that
end, in an analogous, unreported decision,         11
                                                        we explained: “Having voluntarily
agreed to a pension benefit that is less than that available under the applicable
statute, [the claimant] and the [u]nion cannot now claim that that very same
provision in the CBA is illegal or void as against public policy.” Haines v. City of
Warren (Pa. Cmwlth., No. 2333 C.D. 2006, filed April 17, 2008), Slip Op. at 7,
2008 WL 9408140 at *4 (unreported) (emphasis added). This statement applies
with equal force here.


              Moreover, Perroz’s assertions on this point fail to differentiate
between the denial of his disability pension benefit and a scenario in which a Plan
participant is denied a regular retirement pension benefit. Perroz suffered no
deprivation of his regular retirement pension benefit here; in fact, at the hearing,
Perroz testified he would reach his normal retirement date and begin receiving a
regular pension benefit as of August 2015. R.R. at 71.


              Further, while Perroz points to the fact that the Plan receives state aid,
he offers no support for his assertion that this fact compels approval of the
disability pension benefit he seeks here. Additionally, although Perroz takes issue
       11
            Pursuant to Commonwealth Court Internal Operating Procedure 414, 210 Pa. Code
§69.414, an unreported panel decision of this Court, issued after January 15, 2008, may be cited
for its persuasive value.



                                              32
with the fact that a Plan participant’s receipt of a disability pension benefit is offset
by the receipt of federal social security benefits, this offset is specifically provided
for in Section 5(e)(1) of Act 600, which states:

             (e)(1) In the case of the payment of pensions for permanent
             injuries incurred in service, the amount and commencement of
             the payments shall be fixed by regulations of the governing
             body of the borough, town, township or regional police
             department and shall be calculated at a rate no less than fifty per
             centum of the member’s salary at the time the disability was
             incurred, provided that any member who receives benefits for
             the same injuries under the Social Security Act (49 Stat. 620, 42
             U.S.C. § 301 et seq.) shall have his disability benefits offset or
             reduced by the amount of such benefits.

53 P.S. §771(e)(1) (emphasis added).


             Finally, while Perroz suggests the Borough denied his disability
pension benefit in order to aid its pecuniary interests, he cites no record evidence in
support of this claim. In Shields v. Brentwood Borough (Pa. Cmwlth., No. 81 C.D.
2013, filed January 29, 2014), Slip Op. at 16, 2014 WL 316589 at *8 (unreported),
we rejected a similar assertion, stating: “As for [the claimant’s] assertion that [the
borough’s pension plan administrator] denied his request because the [b]orough
could not afford to pay him benefits, this Court rejects this argument because it is
nothing more than speculation and without support in the record.”


             Based on the foregoing, we affirm.



                                         ROBERT SIMPSON, Judge




                                           33
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William J. Perroz,                   :
                       Appellant     :
                                     :   No. 1133 C.D. 2015
            v.                       :
                                     :
Fox Chapel Borough                   :

                                   ORDER

            AND NOW, this 13th day of July, 2016, the order of the Court of
Common Pleas of Allegheny County is AFFIRMED.




                                    ROBERT SIMPSON, Judge
