DOMINIC PENNA v. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DOMINIC PENNA,

Appellant,

v.

BOARD OF TRUSTEES, POLICE AND

FIREMEN'S RETIREMENT SYSTEM,

Respondent.

______________________________

November 30, 2016

Argued October 26, 2016 Decided

Before Judges Alvarez and Accurso.

On appeal from the Board of Trustees of the Police and Firemen's Retirement System,

PFRS #3-10-45577.

David P. Hiester argued the cause for appellant (The Cushane Law Firm, LLC, attorneys; Thomas A. Cushane and Mr. Hiester, on the brief).

Robert S. Garrison, Jr., Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Garrison, on the brief).

PER CURIAM

Dominic Penna appeals from a final decision of the Board of Trustees, Police and Firemen's Retirement System, denying his application for accidental disability retirement benefits. The Board determined that Penna did not establish that his post-traumatic stress disorder was a direct result of a traumatic event. We affirm.

The record reflects that Penna was a City of Camden police officer for over eighteen years when he was involved in a police shooting on July 23, 2011. Penna never returned to work. He was diagnosed with post-traumatic stress disorder and applied for accidental disability retirement benefits several months later.

The Board determined Penna was totally and permanently disabled as a direct result of the shooting incident and physically or mentally incapacitated from the performance of his usual duties. The Board also determined that the incident was identifiable as to time and place, was caused by an external circumstance and not the result of a pre-existing disease, occurred during and as a result of Penna's performance of his regular duties and was not the result of willful negligence.

Notwithstanding those findings, the Board denied him accidental disability retirement benefits because it concluded his disabling incident was "not undesigned and unexpected" and there was no evidence the event "was objectively capable of causing a reasonable person in similar circumstances to suffer a disabling mental injury." The Board further found Penna's disabling mental injury "did not result from 'direct personal experience of a terrifying or horror-inducing event that involved actual or threatened death or serious injury, or a similarly serious threat to'" his physical integrity or that of another person.

The Board awarded Penna ordinary disability retirement benefits. He appealed, and the matter was transferred to the Office of Administrative Law (OAL) for a hearing as a contested case.

The OAL hearing was held on April 24, 2014. The parties presented the administrative law judge (ALJ) with a joint fact stipulation agreeing that the only factors in dispute were whether the incident was undesigned and unexpected and whether it was objectively capable of causing a reasonable person in similar circumstances to suffer a disabling mental injury.

Penna was the only witness to testify. He recounted the events of the day of the shooting, beginning with his response to a call to assist two investigators from the prosecutor's office in serving an arrest warrant shortly after his shift started at 6:00 a.m. The suspect was wanted for the alleged sexual assault of his girlfriend's daughter. After the officers failed to locate the suspect at two different locations, Penna returned to his patrol duties. Shortly after 11:30 a.m., Penna heard a radio transmission dispatching two other officers to a warehouse where the suspect worked, and he went to assist.

Penna spotted the suspect pedaling a bicycle out of the facility, as well as the two officers dispatched to the scene. As the two officers gave chase on foot, Penna followed the suspect in his patrol car. All three eventually lost sight of the man. Attempting to set up a perimeter, Penna got out of his patrol car to continue the pursuit on foot. He did not radio his whereabouts to the other officers.

Penna drew his gun and entered a hidden, overgrown, narrow alleyway he was familiar with from chasing several other suspects through it. There he saw the suspect crouched in three foot weeds, facing away from him, hiding from the other officers. Penna yelled, "Police," and the man jumped up to face him. As Penna shouted, "Let me see your hands," the man reached in his waistband for a brown object. Believing the object to be the handle of a gun, Penna fired two shots at the suspect, both of which missed him.

As the man continued to reach for the object at his waist, Penna attempted to fire two more shots when his service weapon jammed. The two men stood twenty to twenty-five feet from one another. Penna immediately leapt at the man and took him to the ground, where he "pistol-whipped" him. After securing the suspect, Penna discovered that the brown object at his waist was a four-inch phone case. The man was unarmed.

The psychiatrist who examined Penna on behalf of the City found him unfit to return to duty. Penna's own psychologist determined he suffered from post-traumatic stress disorder and found him totally and permanently disabled. Penna testified that when his gun jammed, he thought he "was a dead man." He continues to suffer anxiety, nausea, inability to sleep and experiences nightmares in which he confronts a suspect but his gun fails to fire. He also complained of "flashbacks" of the shooting, triggered by seeing emergency vehicles or hearing the sound of gunshots from a firing range near his home.

On cross-examination, Penna acknowledged having received training in physically subduing suspects, which he did routinely as part of his job. He also admitted he was wearing a bullet-proof vest when he confronted the suspect.

The ALJ issued an initial decision upholding the denial of accidental disability retirement benefits to Penna. He disagreed, however, with the Board that the incident was not undesigned and unexpected. The ALJ noted that Penna's gun failed to fire, not because it was out of ammunition, but because it jammed. He found that when an officer pulls the trigger of a fully-loaded service weapon, he expects the gun to fire. Because Penna's gun malfunctioned, the ALJ found its failure to fire was undesigned and unexpected, thus satisfying the requirements of Richardson v. Board of Trustees, Police & Firemen's Retirement System, 192 N.J. 189, 212 (2007).

The ALJ agreed with the Board that Penna's injury could not be said to have resulted from "direct personal experience of a terrifying or horror-inducing event that involved actual or threatened death or serious injury, or a similarly serious threat to the physical integrity of the member or another person," as required by Patterson v. Board of Trustees, State Police Retirement System, 194 N.J. 29, 34 (2008).

The ALJ rejected Penna's argument that because he was not prosecuted, the authorities necessarily determined his use of force was justified in accordance with State v. Gartland, 149 N.J. 456, 467 (1997) (noting use of deadly force is justifiable only if the actor reasonably believes such force is necessary to protect against death or serious bodily harm), and thus there could be no dispute that Penna reasonably believed he faced death or serious bodily harm, satisfying Patterson.

The ALJ found the argument, taken to its logical conclusion, "would require that every instance in which an officer correctly determine[s] that deadly force is necessary would automatically satisfy the Patterson standards," which he found "simply . . . not so." Moreover, adopting Penna's theory "would undermine [his] argument that the disabling event occurred once the weapon jammed, which in itself occurred after two rounds had already been successfully fired." The ALJ found "[t]he decision to use deadly force and a determination that an event meets the Patterson standards are two separate analyses employing and utilizing two different standards."

The ALJ concluded that Penna's reasonable belief that deadly force was necessary did not mean the officer faced actual or threatened death or serious injury. Because the suspect was not armed, notwithstanding Penna's belief to the contrary, the ALJ found no actual threat existed. The ALJ concluded Penna's "reasonable belief that he needed to protect himself was real. The threat to his person was not."

The Board adopted the ALJ's findings of fact and conclusions of law on May 5, 2015. This appeal followed. Penna argues on appeal that the Board erred in adopting the ALJ's finding that "Penna's injuries did not involve the threat of death or serious bodily injury."

Our role in reviewing the decision of an administrative agency is limited. In re Carter, 191 N.J. 474, 482 (2007). We accord a strong presumption of reasonableness to an agency's exercise of its statutorily delegated responsibility, City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980), and defer to its fact finding. Utley v. Bd. of Review, 194 N.J. 534, 551 (2008). We will not upset the determination of an administrative agency absent a showing that it was arbitrary, capricious, or unreasonable; that it lacked fair support in the evidence; or that it violated legislative policies. In re Musick, 143 N.J. 206, 216 (1996); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963).

Our public pension systems are "bound up in the public interest and provide public employees significant rights which are deserving of conscientious protection." Zigmont v. Bd. of Trs., Teachers' Pension & Annuity Fund, 91 N.J. 580, 583 (1983). Because pension statutes are remedial in character, they are liberally construed and administered in favor of the persons intended to be benefited thereby. Klumb v. Bd. of Educ. of Manalapan-Englishtown Reg'l High Sch. Dist., 199 N.J. 14, 34 (2009).

Against this backdrop, we consider the question presented by this appeal. In order to qualify for an ordinary disability retirement, a member must satisfy the requirements of N.J.S.A. 43:16A-6(1), which provide that the member must be mentally or physically incapacitated for the performance of usual duty and of any other duty the member's department would assign and that such incapacity is likely to be permanent. To be eligible for the enhanced benefit of an accidental disability pension, the member must further show that the member is "permanently and totally disabled as a direct result of a traumatic event occurring during and as a result of the performance of his regular or assigned duties and that such disability was not the result of the member's willful negligence." N.J.S.A. 43:16A-7(1).

In Richardson, the Supreme Court determined that an individual seeking accidental disability benefits under N.J.S.A. 43:16A-7(1) must establish

1. that he is permanently and totally disabled;

2. as a direct result of a traumatic event that is

a. identifiable as to time and place,

b. undesigned and unexpected, and

c. caused by a circumstance external to

the member (not the result of pre-existing disease that is aggravated or accelerated by the work);

3. that the traumatic event occurred during and as a result of the member's regular or assigned duties;

4. that the disability was not the result of the member's willful negligence; and

5. that the member is mentally or physically incapacitated from performing his usual or any other duty.

[Richardson, supra, 192 N.J. at 212-13.]

In Patterson, the Court determined a "permanent mental injury caused by a mental stressor without any physical impact can satisfy the Richardson standard." Patterson, supra, 194 N.J. at 48. It, however, "limit[ed] accidental disability recovery to stressors sufficient to inflict a disabling injury when experienced by a reasonable person in similar circumstances." Id. at 50. It thus held that to obtain accidental disability benefits for a mental injury precipitated by an exclusively mental stressor, a member, in addition to satisfying the Richardson standards, must prove "the disability . . . result[ed] from direct personal experience of a terrifying or horror-inducing event that involves actual or threatened death or serious injury, or a similarly serious threat to the physical integrity of the member or another person." Ibid.

The Court revisited its opinions in Richardson and Patterson in Russo v. Board of Trustees, Police & Firemen's Retirement System, 206 N.J. 14 (2011). Russo clarified that, "where a qualifying horrific event is experienced, Patterson is satisfied with no further analysis." Id. at 32. Thus, in the case of a mental injury caused by a mental stressor with no physical impact (a so-called mental-mental case), the member must first meet the Patterson standard by demonstrating aqualifying traumatic event. Ibid. "It is then that Richardson comes into play." Ibid. Stated another way

[O]nce a member has experienced a qualifying incident a "terrifying or horror-inducing event that involves actual or threatened death or serious injury, or a similarly serious threat to the physical integrity of the member or another person" the objective reasonableness standard of Patterson has been met and only the Richardson factors remain to be satisfied.

[Russo, supra, 206 N.J. at 33 (citingPatterson, supra, 194 N.J. at 50).]

Applying those standards here, we are satisfied that the Board was correct in adopting the ALJ's conclusion that Penna did not suffer a direct personal experience of a terrifying or horror-inducing event that involved actual or threatened death or serious injury, as required by Patterson. See Russo, supra, 206 N.J. at 32. The suspect that Penna confronted in the alley was unarmed. Thus, despite what Penna might have reasonably believed based on his observations, he was not faced with "threatened death or serious injury." As the ALJ found, Penna's "reasonable belief that he needed to protect himself was real. The threat to his person was not." Penna's arguments to the contrary are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Because Penna did not experience a qualifying traumatic event under Patterson, his potential for a mental-mental accidental disability benefit was eliminated, and the Richardson factors never come into play. See Russo, supra, 206 N.J. at 32-33. Accordingly, we need not reach the question of whether the malfunction of Penna's service weapon made the incident undesigned and unexpected under Richardson.

Upon review, we find no basis to suggest the Board's adoption of the ALJ's findings as to qualifying traumatic event under Patterson was arbitrary or capricious. The ALJ's findings were fully supported by substantial credible evidence in the record. Accordingly, there is no basis to alter the Board's

conclusion denying Penna's application for accidental disability retirement benefits. In re Young, 202 N.J. 50, 70 (2010).

Affirmed.