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Fromm v. Board of Directors of Police and Firemen''s Retirement System

Decided: November 8, 1963.

ALFRED J. FROMM, JR., PLAINTIFF-APPELLANT,
v.
BOARD OF DIRECTORS OF THE POLICE AND FIREMEN'S RETIREMENT SYSTEM, DEFENDANT-RESPONDENT



Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

[81 NJSuper Page 139] Plaintiff appeals from a final decision of the Board of Trustees of the Police and Firemen's

Retirement System (Board) denying him further pension payments for a service-connected disability sustained while a member of the Westfield Police Department, because of a conviction involving his employment. The appeal is submitted on an agreed statement in lieu of record.

Plaintiff, a sergeant in the Westfield Police Department, held the position of violations clerk of the Westfield Municipal Court. See R.R. 8:10-10 for the duties of a violations clerk. As a result of an investigation of the Westfield Police Department, plaintiff was indicted in January 1959 under N.J.S. 2A:136-1 on 25 counts for altering and downgrading traffic tickets. See R.R. 8:10-1 and Local Criminal Court Form 12, relating to the Uniform Traffic Ticket. The case was re-presented to the January 1960 Union County grand jury, and a new indictment in 25 counts was returned charging the same offense. (In this connection, consult State v. Fromm , 65 N.J. Super. 30 (1961), where we reversed an order denying Fromm's motion to dismiss an indictment returned against him as fatally defective because uncertain and indefinite, and remanded the matter. The indictment there under attack charged that plaintiff, between January 1, 1958 and July 18, 1959, "unlawfully did alter and falsify documents belonging to the Municipal Court of said Town of Westfield," contrary to N.J.S. 2A:136-1.)

At the initial trial of the new indictment on November 1, 1961 in the Union County Court, 7 counts were dismissed on motion during trial, the jury returned verdicts of not guilty on 15 counts, and was unable to agree on the remaining 3. At a subsequent trial of these three counts held January 10, 1962, the jury found plaintiff not guilty on one count and guilty on the remaining two. He was ultimately fined $100 on each of the latter counts.

On July 20, 1959, prior to the return of the new indictment and during the police department investigation, Sergeant Fromm was transferred from his position as violations clerk to the police motorcycle detail assigned to traffic duty. While on duty in November 1959 he sustained an injury to his lower

back -- a herniated disc. This constituted a service-connected disability which would have entitled him to a pension at two-thirds of his annual salary under section 7 of the Police and Firemen's Pension Act, N.J.S.A. 43:16A-7, but for the convictions mentioned above.

In May 1960 plaintiff, as a member of the Police and Firemen's Retirement System, applied under N.J.S.A. 43:16A-7 for a service-connected disability pension. Defendant Board, by resolution of July 18, 1960, granted him a monthly pension of $346.56, commencing August 1, 1960. This pension was expressly conditioned upon the disposition of the pending investigation and the indictment against Fromm; in the event the indictment resulted in a conviction, the Board was to take such further action as might be required. After plaintiff had been found guilty of violating N.J.S. 2A:136-1 and fined, the Board on June 1, 1962 suspended pension payments and advised him of its action. On October 25, 1962 the Board notified plaintiff of its official decision to terminate further pension benefits because of his conviction. This appeal followed.

Plaintiff contends that: (1) conviction under N.J.S. 2A:136-1 should not and does not terminate service-connected pension benefits conditionally granted under N.J.S.A. 43:16A-7; (2) violation of N.J.S. 2A:136-1 does not involve a crime of moral turpitude; (3) "honorable service" is not a condition precedent to the granting of a service-connected pension under N.J.S.A. 43:16A-7; (4) such pension can be suspended only while the beneficiary is confined to a penal institution, as provided in N.J.S.A. 43:1-2; (5) the Board is estopped from denying him pension benefits; and (6) the provisions of N.J.S. 2A:135-9 do not affect his pension rights.

The heart of this appeal lies in plaintiff's contention that he is not disqualified from receiving service-connected disability payments under N.J.S.A. 43:16A-7 merely because he was convicted of crime. He argues that pension statutes are to be liberally construed to effectuate the legislative intent,

citing Bederski v. Policemen's and Firemen's Pension Board of Newark , 4 N.J. Misc. 637, 134 A. 90 (Sup. Ct. 1926), affirmed per curiam 104 N.J.L. 163 (E. & A. 1927). That statute, he notes, makes no mention of "honorable service." Referring to the Policemen's and Firemen's pension Fund Act, R.S. 43:16-1 et seq. , as amended, he calls attention to the fact that N.J.S.A. 43:16-2, dealing with retirement for disability, makes no mention of honorable service in its first paragraph providing for a service-connected disability pension. On the other hand, the second paragraph, providing for a non-service disability pension, requires that the applicant ...


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