           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joseph M. Massi, Sr.                 :
                                     :
             v.                      : No. 1635 C.D. 2017
                                     : Argued: June 7, 2018
City of Chester Aggregated Pension :
Board and City of Chester ,          :
                          Appellants :


BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                             FILED: July 17, 2018


            The City of Chester Aggregated Pension Board (Pension Board) and
the City of Chester (City) (together, Appellants) appeal from an order of the Court
of Common Pleas of Delaware County (trial court) finding Joseph M. Massi, Sr.
(Massi) proved that he suffered a permanent and total disability during the course
of his duties as a police officer with the City on February 6, 2014, and awarding
him a service-connected disability pension.     For the reasons that follow, we
reverse.
                                          I.
             The City’s Police Pension Ordinance (Ordinance), codified in Article
143 of the City’s Administrative Code, provides that police officers are eligible to
receive a normal age/service retirement benefit, as follows:

             A member who was first hired by the City on or after
             January 1, 1988, and who has served continuously for a
             period of twenty-five years and has reached the age of
             fifty-three years shall be entitled upon application to the
             [Pension] Board to retire and to receive a pension until
             death which shall be fifty percent (50%) of the average
             annual salary of such member which he or she received
             during the last three years of service immediately
             preceding retirement.


Ordinance Article 143.03(b)(1) (Reproduced Record (R.R.) at 37a.)


             In addition, Article 143.03(f) of the Ordinance codifies when an
officer may be eligible for service-connected disability benefits:

             Beginning January 1, 1982, any police officer who
             becomes permanently and totally disabled as a result of a
             disability incurred while in the actual performance of his
             or her duty and who, by reason thereof, is unable to
             perform his or her duties as a member of the police force
             shall be entitled upon application to the [Pension] Board
             to retire and to receive a monthly pension until death or
             reinstatement. Such pension shall be in an amount equal
             to one hundred percent (100%) of said police officer’s
             average monthly earnings reportable or reported on the
             police officer’s W-2 form in the twelve month period
             prior to his or her retirement.




                                          2
(R.R. at 39a.)1 Article XXIII(1) of the collective bargaining agreement (CBA)
between the City and the Fraternal Order of Police (FOP), Lodge No. 19, effective
from January 1, 2012, to December 31, 2016, similarly provides the following with
respect to eligibility for service-connected disability benefits:

               Any Police Office [sic] who becomes permanently and
               totally disabled as a result of a disability incurred while
               in the actual performance of his or her duty and who, by
               reason thereof, is unable to perform his or her duties as a
               member of the police force shall be entitled to retire and
               to receive a monthly pension. Such pension shall be in
               an amount equal to one hundred percent (100%) of said
               Police Officer’s average monthly earnings reportable or
               reported in the police officer’s W-2 Form for the twelve
               (12) month period prior to his or her retirement.


(R.R. at 83a.)2

       1
         Article 143.03(f) of the Ordinance goes on to state that “[t]he City can claim as an offset
from the aforesaid pension the following items: (1) One hundred percent (100%) of whatever
workers’ compensation benefit the retired police officer is receiving as a result of his or her
service-connected disability. . . .” (R.R. at 39a.)

       2
         Article XXIII(1)(A) of the CBA provides, in pertinent part, that the City can claim the
following items as an offset from a service-connected disability pension:

               (1) 100% of whatever workers’ compensation benefits the retired
               Police Officer is receiving as a result of his or her service-
               connected disability; (2) all earnings from employment which the
               retired Police Officer did not have at the time he or she retired
               and/or all earnings in excess of those average earnings from
               employment which the retired Police Officer had at the time he or
               she retired and which said Police Officer had regularly received
               during the twelve (12) month period immediately preceding his or
               her service-connected disability retirement.

(R.R. at 83a-84a.)


                                                 3
             The City created the Pension Board to act as trustee of the City's
Aggregated Pension Fund, which holds the assets, funds, accounts, claims and
liabilities of the City's Police Pension Fund, Paid Fireman's Pension Fund and
Officers and Employees Optional Retirement System. Pursuant to the Ordinance,
the Pension Board consists of 11 voting members, 6 of which are City officials and
5 of which are nominated by bargaining units whose pensions are under the
jurisdiction of the Pension Board. The Pension Board is responsible for making
determinations for eligibility for pensions and other pension-related activities for
City employees in accordance with the applicable codified pension ordinances.


             Of particular importance to this case, Section 143.24 of the Ordinance
outlines the City’s Deferred Retirement Option Plan (DROP) program, which is
available to officers with at least 20 years of service. Under this program, an
officer who is otherwise entitled to retire may enter the DROP program, continue
to work and be paid by the City while also receiving his pension benefits. These
pension benefits are deposited into a trust account which an officer is then entitled
to at the time of his actual retirement. To participate in the DROP program,
officers “shall make an irrevocable commitment to separate from City service as a
police officer and retire upon ceasing participating in the DROP, which they must
do no later than five (5) years after entering the DROP.” Ordinance Article
124.24(b) (R.R. at 46a.) The Ordinance also provides that “[o]nce entering the
DROP, the member continues to be a DROP Participant until separation from City
service as a police officer, at which point the member is deemed retired.”




                                         4
Ordinance Article 143.24(j) (R.R. at 47a.)3 With this background in mind, we now
turn to the specific facts of this case.


                                                II.
                 Massi began working as a City police officer in 1989, rising through
the ranks from patrolman to sergeant and finally serving as a captain for his last six
years. On July 1, 2009, after 20 years of service, Massi voluntarily applied to enter
the City’s DROP program; therefore, pursuant to Section 143.24 of the Ordinance,
he agreed to separate from his employment as a police officer with the City on or
before June 30, 2014.


                 On September 26, 2013, while he was still a participant in the DROP
program, Massi was injured in a physical altercation with a criminal defendant,
sustaining herniated discs at the C5-6 and C6-7 levels. Massi continued to work
full-time and received medical treatment under his workers’ compensation
coverage. However, on February 6, 2014, Massi was injured for a second time

       3
           Article 143.24(m) of the Ordinance provides:

                 If a DROP Participant applies for, and the [Pension] Board grants,
                 a service connected disability retirement benefit under Section
                 143.03(d) or (f), the member shall be terminated from the DROP
                 and separated from service with the City to begin a service
                 connected disability retirement benefit annuity and to receive the
                 DROP Benefit, as provided in Section 143.24(i), with the service-
                 connected disability retirement benefit being based on the
                 compensation and service levels as determined at the DROP Entry
                 Date.

(R.R. at 47a.)



                                                 5
when he was involved in a motor vehicle accident while on duty, sustaining
additional injuries to his neck and back. As a result of the injuries sustained in
these two work-related incidents, Massi underwent a two-level fusion surgery to
stabilize his cervical disc herniation on February 26, 2014. The City recognized
both injuries as work-related and admitted that the surgery was required as a result
of these injuries.


             Massi’s intention was to recover and obtain another job in law
enforcement after his retirement since he was only 50 years of age at the time.
Given the nature of the fusion surgery, Massi was informed by his physicians that a
medical assessment and determination as to whether he was capable of returning to
work as a police officer could not be completed until approximately one year
following the surgery, which was beyond the deadline for his retirement under the
DROP program. Because he was not medically cleared, Massi was unable to
return to work.


             On June 30, 2014, while still in the medical assessment period for his
injuries and while still receiving workers’ compensation benefits, Massi separated
from service as a police officer and received his DROP distribution payment from
the City. He also became eligible for and began receiving normal retirement
benefits. In March 2015, after a full year had passed since his surgery, four
physicians consulted by Massi concluded that he was disabled due to his work-
related cervical spine injuries. Accordingly, on March 31, 2015, Massi applied to
the City for service-connected disability pension benefits pursuant to Article
143.03(f) of the Ordinance and Article XXIII of the CBA. Massi’s application


                                         6
letter was not accompanied by any supporting medical evidence or documentation
and specifically stated that he was “in the process of obtaining confirmation letters
from two physicians confirming [his] disabled status.” (R.R. at 93a.)


             In a letter to the City dated June 22, 2015, Massi’s counsel requested
that he be placed on the next available hearing list for disability consideration and
indicated that Massi would submit to an independent medical examination (IME).
In support of his application, Massi’s counsel also sent the Pension Board letters
from several physicians outlining his injuries and disability status, including: a
letter dated April 9, 2015, from Mark S. Eskander, M.D. (Dr. Eskander) of
Delaware Orthopaedic Specialists indicating that he was recommending Massi
undergo some additional treatment and that “[a]t this juncture, he is incapable of
returning to his employment as a Chester Police Officer” (R.R. at 303a); a letter
dated April 20, 2015, from J. Rush Fisher, M.D. (Dr. Fisher) of the Christiana
Spine Center, LLC, indicating that causality does exist and that a true disability
rating might help with Massi’s evaluation; a May 13, 2015 procedure note from
Nancy Kim, M.D. (Dr. Kim) of the Christiana Spine Ambulatory Surgery Center,
LLC, following Massi’s L3-4, L4-5 and L5-S1 discogram of the same date, with
positive findings and diffuse annular tearing at the L4-5 and L5-S1 levels; a letter
from Dr. Kim dated April 19, 2016, stating her opinion, within a reasonable degree
of medical probability, that Massi was disabled and not capable of returning to
work as an active policeman; a May 10, 2016 letter from Dr. Eskander, who last
saw Massi on April 19, 2016, stating that he believed Massi was disabled from his
employment as a City police officer; a June 13, 2016 letter from Dr. Eskander
stating that he had reviewed Massi’s Functional Capacity Evaluation dated May


                                         7
27, 2016, that Massi was at a sedentary demand and “[h]e cannot return to his
former position as a police officer because of these limitations found on the
Functional Capacity Evaluation” (R.R. at 312a); a June 17, 2016 letter from
William C. Murphy, DO, LPT (Dr. Murphy) of S.M.A.R.T. Rehabilitation
indicating that because of Massi’s work-related injuries, he is permanently disabled
from his job as a City police officer; and a July 11, 2016 letter from Dr. Fisher
stating his opinion that Massi was not capable of returning to work as a City police
officer and indicating an additional surgical option to correct the nonunion at his
C6-7 level.


              By letter dated December 22, 2016, the Pension Board notified Massi
that his application for a disability pension was denied.       The Pension Board
concluded that Massi’s application was untimely because a completed application
was not received prior to his separation date of June 30, 2014. Because Massi was
no longer a DROP participant at the time of his application but rather a retiree, the
Pension Board concluded that he was ineligible for a service-connected disability
pension. Massi then appealed to the trial court which held a de novo hearing.


              James Chubb (Chubb), a Captain with the City’s Police Department
and Recording Secretary with FOP Lodge No. 19, testified that there was nothing
in Article 143 of the Ordinance that required an officer to apply for service-
connected disability benefits prior to his or her leaving the DROP program. (R.R.
at 143a.) Chubb testified that the parties’ new CBA, effective January 1, 2017,
specifically provides that:




                                         8
             any such officer who is a member of the DROP must
             apply for a disability benefit before his or her DROP
             Participation period ends and if an officer applies for or
             becomes entitled to a disability benefit while a DROP
             Participant, that officer’s benefit shall not be recalculated
             but his age and service benefit shall be converted to a
             disability benefit. An employee who is in the DROP and
             becomes disabled shall be presumed to be permanently
             disabled after one year.


(R.R. at 294a.)


             Massi testified that he was never informed or aware that as a DROP
participant, he needed to notify the City of his intention to seek a service-
connected disability pension prior to his retirement date. (R.R. at 156a.) The only
procedure that he was aware of with respect to applying for disability was the
unwritten policy of submitting supporting documentation from two doctors. Massi
testified that he did not submit his application prior to retiring because he fully
intended to return to work with another police department after his cervical fusion
surgery and, under the Municipal Police Officers’ Education & Training
Commission (MPOETC) guidelines, he could not do so if he had already submitted
an application for disability benefits. Moreover, Massi stated that he was unable to
perform MPOETC’s annual physical re-certification requirements to be able to
return to work as of June 30, 2014.           Massi’s doctors told him it would be
approximately a year after his surgery before they could see any proof of whether
the cervical fusion was successful. Massi testified that he underwent a second
cervical fusion surgery on November 30, 2016, to repair the first surgical
intervention, which did not fuse, and to correct an additional disc failure at C4-5.


                                          9
             Nafis Nichols (Nichols), the City’s Chief Financial Officer and
advisor to the Pension Board, testified that a police officer is supposed to notify the
City in writing of his or her intent to retire and what type of pension he or she
would like to receive. Nichols stated that if the officer is requesting a disability
pension, his or her application must be accompanied by two doctors’ notes
substantiating the claim that the officer is permanently disabled and cannot
perform the duties of a City police officer.        Nichols testified that a normal
retirement benefit is calculated at 50% of the gross amount an individual earned in
the past 52 weeks of service, while a service-connected disability benefit is
calculated at 100%. Nichols further testified that the status of the City’s Police
Pension Fund was grave as it was only funded at less than 20%, with an estimated
lifespan of just 17 months. Nichols stated that he was aware of three or four other
individuals requesting a similar benefit as Massi.          He admitted on cross-
examination that the City had not suffered any prejudice as a result of the two-year
gap between when Massi first submitted his application and when the City deemed
the application complete, as the City was aware that he was attempting to receive a
disability pension.


             The record was left open following the trial court hearing so the
Pension Board could refer Massi for an IME, which was performed by Michael A.
Kennedy, M.D., MPH (Dr. Kennedy) on June 28, 2017. After examining Massi
and reviewing his medical records, Dr. Kennedy concluded that one year after his
initial surgery, Massi had a nonunion that needed stabilization, and that his second
cervical fusion surgery on November 30, 2016, was related to his previous work
injuries. However, based upon the statements of Dr. Eskander and Dr. Kim, Dr.


                                          10
Kennedy also concluded that Massi was not officially permanently disabled from
his work as a City police officer as of his retirement date, July 1, 2014. Dr.
Kennedy noted that while there were statements and opinions putting Massi out of
work, they were not provided until 2015 and 2016.


            As rebuttal, Massi submitted a letter dated September 11, 2017,
wherein Dr. Fisher stated his opinion that Massi is certainly disabled and this
disability was caused by his work-related injuries. Moreover, with respect to
whether Massi was disabled prior to his separation from employment on July 1,
2014, Dr. Fisher opined, “Massi indeed had a well-established pseudoarthrosis, or
nonunion, at the C6-7 segment for which he was symptomatic up to and after his
separation from the police force.” (R.R. at 332a.)


            The trial court found that Massi had proven through sufficient
competent evidence that he sustained a permanent and total disability on February
6, 2014, while on duty as a police officer, and by reason of this disability, he was
unable to perform his duties. This permanent and total disability was sustained
while Massi was a participant in the DROP program prior to his date of final
separation. The trial court noted there was no evidence of any time restriction
contained in the Ordinance, CBA or Pension Board regulations governing when a
DROP participant could make a service-connected disability claim. Therefore, the
trial court found Massi’s March 31, 2015 application was timely, granted his
appeal, and ordered that Massi receive a service-connected disability pension under




                                        11
Article 143.03(f) of the Ordinance, subject to any applicable offsets and credits
under the CBA. This appeal followed.4


                                              III.
               Appellants’ main argument is that Massi’s application was untimely
because it was not submitted prior to his retirement. As Appellants note, Massi
was a DROP participant when he sustained his injuries and, according to the
Ordinance, a police officer “continues to be a DROP Participant until separation
from City service as a police officer, at which point the member is deemed
retired.” Ordinance Article 143.24(j) (R.R. at 47a.) Given this provision, Massi
was no longer a DROP participant but a retiree as of July 1, 2014. The DROP
provision of the Ordinance, specifically Article 143.24(m), provides that a DROP
participant may apply for and obtain a service-connected disability pension, but
does not provide that a retiree may make such an application. Because Massi did
not submit his application prior to July 1, 2014, while he was still a DROP
participant, he is not entitled to a service-connected disability pension under
Article 143.24(m) of the Ordinance.


               Similarly, he is not entitled to a service-connected disability pension
under Article 143.03(f) of the Ordinance or Article XXIII(1) of the CBA because
at the time he submitted his application, he was no longer a police officer. While
the Ordinance and the CBA do not specifically state that a police officer must


       4
        Our review is limited to determining whether constitutional rights have been violated
and whether the trial court committed an error of law or abuse of discretion. See 2 Pa.C.S. § 754.



                                               12
submit his application prior to his retirement, that is their practical effect. Both
provisions state that “any police officer” who becomes permanently and totally
disabled while in the actual performance of his duty and who, by reason of that
disability, is unable to perform his duties as a City police officer, is entitled to
service-connected disability benefits. See Ordinance Article 143.03(f) (R.R. at
39a); Article XXIII(1) of the CBA (R.R. at 83a.)


             It is undisputed that Massi did not file his application letter with the
City until March 2015, nine months after he voluntarily separated from his
employment.     As such, he was no longer a police officer at the time of his
application, but a retiree, and there is nothing in the Ordinance or the CBA which
even suggests that a retiree can apply to change his normal retirement benefit to a
service-connected disability benefit.


             Moreover, both the Ordinance and the CBA provide that an officer
must be permanently and totally disabled in order to qualify for service-connected
disability benefits. Massi admits that his original application letter did not contain
any medical evidence to support his contention that he was permanently and totally
disabled.   In fact, Massi did not supply the City with supporting medical
documentation of a permanent and total disability until two years after he
voluntarily retired and approximately one year after the submission of his
application. If we were to accept Massi’s and the trial court’s interpretation of the
Ordinance and the CBA, there would be no time limitation upon an officer
applying for disability benefits. In effect, a police officer could retire and file an
application for service-connected disability benefits 5, 10, 15 years down the line –


                                         13
basically, at any point in time after he was able to obtain medical documentation
supporting his contention that he was permanently and totally disabled by reason
of his work-related injury – and the officer would then be entitled to disability
benefits retroactive to the date of his injury. This is not a reasonable interpretation
of Article 143.03(f) of the Ordinance or Article XXIII(1) of the CBA, and the trial
court erred in determining otherwise.


              Because Massi was no longer a police officer but a retiree at the time
he submitted his application, and because he did not submit any proof that he
suffered a permanent and total disability until approximately June 2016, two years
after his retirement, the trial court erred in determining that he filed a timely
application for service-connected disability benefits.5


              Accordingly, the order of the trial court is reversed.



                                          ________________________________
                                          DAN PELLEGRINI, Senior Judge




       5
        Given the way in which we decide this case, we need not reach Appellants’ additional
arguments.


                                            14
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joseph M. Massi, Sr.                 :
                                     :
             v.                      :
                                     : No. 1635 C.D. 2017
City of Chester Aggregated Pension :
Board and City of Chester ,          :
                          Appellants :




                                 ORDER


             AND NOW, this 17th day of July, 2018, the order of the Court of
Common Pleas of Delaware County in the above-captioned matter is hereby
reversed.



                                    ________________________________
                                    DAN PELLEGRINI, Senior Judge
