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Frank v. Township of Old Bridge

July 31, 2009

DONALD FRANK, THOMAS CHERNEY, KENNETH THOMPSON, PAUL SICOLA, PLAINTIFFS, AND KENNETH POPEK, PLAINTIFF-APPELLANT,
v.
TOWNSHIP OF OLD BRIDGE, BARBARA CANNON AND HIMANSHU SHAH, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4747-98.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 13, 2008

Before Judges Stern, Lyons and Waugh.

Plaintiff, Kenneth Popek, appeals from a judgment of January 29, 2008, dismissing his complaint "with prejudice." He seeks post-retirement benefits as a retiree on disability. On this appeal, Popek argues that issues of material fact preclude summary judgment; that he "detrimentally relied upon the conduct of agents and representatives of the Township and was entitled to the receipt of the contractual long-term disability benefits" and was contractually entitled to the benefits "without consideration of the prescriptions of N.J.S.A. 40A:14-154 as determined by the Public Employment Relations Commission [PERC]"; that he "was eligible for special compensation benefits pursuant to N.J.S.A. 40A:14-154 since [he] was permanently disabled due to an injury suffered in the performance of his duties," and that those "special compensation" benefits include psychological illnesses or stress-related problems.

Popek was awarded an ordinary disability retirement by the Board of Trustees of the Public Firemen's Retirement System effective April 1, 1994. The disability was based on a "General Anxiety Disorder, with panic attacks." In workers' compensation proceedings, Popek endeavored to demonstrate that the disability was work-related. Those proceedings were settled and dismissed under N.J.S.A. 34:15-20, and are therefore not relevant to the issues before us.

At the time Popek applied for his disability retirement in November 1993, Article XII(B) of a collective bargaining agreement (CBA) between his union and the Township of Old Bridge provided:

1. All employees will be covered by a long term disability insurance. This insurance would supplement any other benefits so that the employees with long term illnesses or serious accident (whether job connected or not) would receive a total of two-thirds (2/3) their regular pay, after a waiting period of thirty (30) days. Such payments would continue until age sixty-five (65) for illness and/or for life if for accident. Said benefit is administered in accordance with Section D. below.

Popek contends that he relied on this provision when applying for his ordinary disability retirement and that the Township is estopped from denying these benefits despite his pension. He received benefits from CIGNA, the Township's disability carrier for one year, from February 23, 1994 through February 22, 1995. There is some dispute as to whether those benefits were discontinued following our decision in Brown v. Twp. of Old Bridge, No. A-6352-90T2 (App. Div. Jan. 22, 1993) ("Brown I"),*fn1 certif. denied, 133 N.J. 440 (1993), or because the policy benefits terminated after a year if an insured could secure employment.

Popek contends:

Because of the specific language of Article XII(B); the past practices of providing police retirees Cherney, Frank, Thompson and Sicola with the contractual disability because of their illnesses; and the actions of the Township in providing Popek with one year of the contractual long term disability benefits, Popek was certain, at the time that he retired, that he would receive the contractual long term disability benefits until he turned 65 through the Township's purchase of the required health insurance coverage.

We have addressed the background issues relating to Popek's claim for the additional benefits in a series of opinions. In Brown v. Twp. of Old Bridge, 319 N.J. Super. 476 (App. Div.) ("Brown III"), certif. denied, 162 N.J. 131 (1999), we restated our prior holdings "that N.J.S.A. 40A:14-154 preempted the field of 'special compensation' in the form of supplemental disability payments," id. at 490, and that the statute applied to all municipal benefits for permanent disability given to police officers whether pursuant to ordinance or by negotiated agreement [but] that equitable estoppel should apply to require defendant to enforce the disability provisions in the collective bargaining agreement, subject to the limitations in N.J.S.A. 40A:54-154 that such benefits ... shall not exceed plaintiff's salary at the time of the injury. [Id. at 491 (quoting Brown II).]

Speaking through Judge (now Justice) Wallace, we held that "the collective bargaining agreement which provides for benefits in excess of the statutory limits of N.J.S.A. 40A:14-154 [was] not enforceable," id. at 496, that "the term 'pension' in N.J.S.A. 40A:14-154, includes a PFRS retirement ...


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