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HomeMy WebLinkAbout02-3253 CivilDUANE LEBO, Plaintiff VS. BOROUGH OF MT. HOLLY SPRINGS, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 02-3253 CIVIL IN RE: LOCAL AGENCY APPEAL BEFORE BAYLEY AND HESS. J.J. OPINION AND ORDER Pending before the court is the appeal of the plaintiff, Duane L. Lebo, from a decision of the Borough Council of the Borough of Mt. Holly Springs, Cumberland County. That decision determined that Mr. Lebo was ineligible for disability benefits under the terms of its police pension plan. The decision also directed that disability payments, previously made to the plaintiff, should be repaid to the pension plan. The record of these proceedings consists, among other things, of a transcript of a hearing conducted in May of 2002 as well as exhibits adduced at that hearing. The facts are as follows. Duane Lebo joined the Mt. Holly Springs Police Force in 1984, at which time the defendant, Borough of Mount Holly Springs, maintained a pension plan for its police officers. On December 11, 1995, the Borough adopted a new pension plan which restricts the definition of "disability" by providing that "totally and permanently disabled means a participant is disabled as a result of performing police work, to the extent that he is prevented from engaging in his normal duties as a police officer as determined by a physician chosen by the Borough." Borough of Mt. Holly Springs Pension Plan, p. 12. Lebo claims that he is entitled to disability benefits due to a convulsive disorder even though the disorder predates his employment with the 02-3252 CIVIL defendant. In the past, the disorder had not prevented Lebo from performing his duties so long as he followed his medication plan and took general care of his health. Lebo contends that the stress of the hours, dangers, risks and responsibilities of his job as a police officer and Chief of Police, as well as the physical demands on his body over the period of his employment from 1984 until the time period in question aggravated his seizure disorder. This resulted in certain episodes while on duty thereby making Lebo disabled from performing the responsibilities of his employment as a result of performing police work. Then Chief of Police Lebo resigned from the Mount holly Springs Police Department on June 11, 2001, effective October 13, 2001. On June 12, 2001, the Borough notified its pension administrator's agent of Chief Lebo's resignation which was accepted "in consideration of his disability, which disability Council believed interfered with his ability to perform his functions as Police Chief and as a police officer for" the Borough. In October 2001, immediately prior to the effective date of Lebo's resignation, Lebo, with the assistance of an employee of the pension plan administrator's agent and the secretary of the Borough, completed an application for disability benefits.~ As a result of the filing, the pension plan administrator began making monthly disability payments to Lebo in the amount of approximately $3,100.00. The Borough's Secretary later learned that Lebo was in fact receiving disability benefits under the Borough's Plan. On April 4, 2002, the Principal Life Insurance Company advised the Borough that Lebo's recent "disability" would require the Borough to contribute as much as $55,000. On April 12, 2002, the Borough's solicitor sent Lebo a notice that the Borough ~ The Borough Secretary completed portions of the form as instructed by Terry Kennedy, a representative of R. J. Hall Co., and the form was signed by Lebo and dated October 11, 2001. 2 02-3252 CIVIL intended to hold a hearing on May 13, 2002 to consider Lebo's eligibility for his disability pension benefits. After the hearing on May 13, 2002, Council issued a written decision containing findings of fact and conclusions of law holding that Lebo was ineligible for disability benefits. Lebo observed that, at the hearing there was never an examination by the Borough' s chosen physician, Lebo did not have the opportunity to present rebuttal medical evidence, and Council relied on letters from Lebo's physician which did not address the issue of disability, as defined by the pension plan. The decision, nonetheless, resulted in the discontinuance of Lebo's benefit payments and a direction to Lebo to reimburse to the Plan all disability pension benefits previously received. In reviewing this local agency decision, our scope of review is whether the Borough Council violated constitutional rights, committed an error of law, or whether necessary findings of fact were unsupported by substantial evidence. Schmidt v. Borough of Stroudsburg, 678 A.2d 206 (Pa. Cmmwlth. 1996). According to the Mt. Holly Springs Ordinance No. 95-7, wherein the Borough Council established the police pension plan, the extent of disability must be determined "by a physician chosen by the Borough." Borough of Mt. Holly Springs Pension Plan, p. 12. In making its determination in this case, Borough Council "chose" Richard B. Brown, M.D., Chief Lebo's treating physician. The Borough Council relied on a letters from Dr. Brown to Mayor Otto dated February 3, 1987, November 29, 1989, and February 27, 2001. The letters stated that Dr. Brown has been treating Lebo's convulsive disorder since 1980, which was before his employment with the Borough. However, Lebo does not disagree that he has had a convulsive disorder that predated his employment. He claims, instead, that the period of his employment from 1984 until the time period in question aggravated his seizure disorder, in turn disabling 3 02-3252 CIVIL him from performing the responsibilities of his employment. Dr. Brown's letters to Mayor Otto do not discuss the question of whether Lebo's convulsive disorder was aggravated by his employment. Nor was any evidence adduced at the Borough's hearing on this point. Thus, the question continues to remain whether Chief Lebo became disabled, to the extent that he was prevented from engaging in his normal duties as a police officer, as a result of performing police work. The Borough, in its written decision of June 10, 2002, places the entire onus of establishing the service-related disability on Lebo. This ignores the fact that the proceeding before the Borough was not conducted to determine Chief Lebo's eligibility for disability but rather was conducted, in reality, to determine whether disability payments should be terminated. The Chief had been approved for disability in October of 2001. The Borough's hearing took place in May of 2002. If the Borough failed to follow its own procedures in initially awarding disability, that can hardly be said to be the fault of Chief Lebo. In the meantime, it appears to be the well- established rule that the burden of proof, at hearings where the issue is the termination of disability benefits, is on the employer. See, e.g., Sammons v. Civil Service Commission of Philadelphia, 673 A.2d 998 (Pa. Cmwlth. 1996), Gwin v. Pa. State Police, 668 A.2d 611 (Pa. Cmwlth. 1995), McLaughlin v. State Employees' Retirement Bd. of Com. of Pa., 629 A.2d 1051 (Pa. Cmwlth. 1993). Here, the Borough not only terminated Chief Lebo's benefits but required him to repay the monies that he received through the pension plan. It did so following a hearing at which no testimony was adduced on the extent to which, if any, Chief Lebo's disability was related to his work as a police officer. Because of this error of law, we are constrained to remand this matter back to the Borough Council for further hearing. 4 02-3252 CIVIL ORDER AND NOW, this day of April, 2003, the within local agency appeal is GRANTED, the order of the Borough Council is REVERSED, and this matter is remanded to the Borough Council of the borough of Mt. Holly Springs for proceedings consistent with our opinion issued of even date herewith. BY THE COURT, Harold S. Irwin, III, Esquire For the Plaintiff Keith O. Brenneman, Esquire For the Borough :rlm Kevin A. Hess, J. DUANE LEBO, Plaimiff VS. BOROUGH OF MT. HOLLY SPRINGS, Defendam AND NOW, this IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 02-3253 CIVIL IN RE: LOCAL AGENCY APPEAL BEFORE BAYLEY AND HESS. J.J. ORDER day of April, 2003, the within local agency appeal is GRANTED, the order of the Borough Council is REVERSED, and this matter is remanded to the Borough Council of the borough of Mt. Holly Springs for proceedings consistent with our opinion issued of even date herewith. BY THE COURT, Harold S. Irwin, III, Esquire For the Plaimiff Keith O. Brenneman, Esquire For the Borough :rlm Kevin A. Hess, J.