Opinion
No. 81 C.D. 2013
01-29-2014
Brandon Shields, Appellant v. Brentwood Borough
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Former Brentwood Borough Police Officer Brandon Shields (Shields) appeals from the order of the Court of Common Pleas of Allegheny County (common pleas court) which affirmed Brentwood Borough Council's (Borough Council) denial of his claim for benefits under the Police Disability Pension Plan (Pension Plan).
Shields was a Brentwood Borough (Borough) police officer who began work as a full-time police officer in March of 2004. On January 6, 2009, Shields injured his right shoulder in the line of duty while he was escorting a crime suspect. Following his January 6, 2009, right shoulder injury, Shields began receiving benefits under the Heart and Lung Act, 53 P.S. §637.
Act of June 28, 1935, P.L. 477, as amended.
Shields also filed a compensation claim under the Workers' Compensation Act and a claim for benefits under the Borough's Pension Plan which provided permanent disability benefits for police officers. Letter from Brandon Shields to George Zboyovsky, December 14, 2010, at 1; R.R. at 129a.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708. The workers' compensation claim was settled.
Section 5.01 of the Borough's Pension Plan provided: "a Participant who shall incur a Total and Permanent Disability shall be entitled to a Disability Retirement Benefit as of the Disability Date." Brentwood Borough Police Pension Plan, Section 5.01, at 17; Reproduced Record (R.R.) at 169a. Section 1.35 of the Pension Plan provided that an injury shall not be treated as a total and permanent injury "unless such condition is the direct result of and occurs in the line of duty as an Employee." Brentwood Borough Police Pension Plan, Section 1.35, at 7; R.R. at 159a. (Emphasis added).
The Borough's Pension Plan Administrator, George Zboyovsky (Zboyovsky), denied Shields' claim for disability pension benefits. Shields appealed the initial denial of his claim for disability pension benefits to Borough Council.
After the injury, Shields treated with a shoulder specialist, Mark Rodosky, M.D. (Dr. Rodosky). Dr. Rodosky saw Shields sixteen times and performed one surgery on Shields' left shoulder and one on his right shoulder.
Jon B. Tucker, M.D. (Dr. Tucker), performed an independent medical examination (IME) in connection with the workers' compensation proceedings. He prepared an IME Report dated October 14, 2010, in which he opined that Shields could "return to work activities, including unlimited lifting and unlimited overhead lifting and reaching." Letter to State Workers' Compensation Insurance Fund from Jon B. Tucker, M.D., October 14, 2010, at 3; R.R. at 123a. Dr. Tucker included a Physician's Affidavit of Recovery with his IME Report.
As the result of Dr. Tucker's IME Report, Zboyovsky, who also served as Borough Manager, notified Shields that the Borough intended to discontinue Shields' Heart and Lung Act benefits. Zboyovsky informed Shields of his right to a hearing before Borough Council. Shields responded in writing and requested a hearing. Shields enclosed with his letter a one-page note dated August 8, 2010, from the University of Pittsburgh Physicians Department of Orthopedic Surgery that stated: "may return to work w/permanent work restrictions of medium duty - max overhead lift of 25 lbs." UPMC Prescription, August 3, 2010, at 1; R.R. at 130a. Shields also enclosed a Functional Capacity Evaluation conducted by the Centers for Rehab Services. Centers for Rehab Services Functional Capacity Evaluation; July 28, 2010, at 1-3; R.R. at 131a-133a.
A hearing on Shields' eligibility for Heart and Lung Act benefits was held before Borough Council on January 18, 2011. The Borough's Solicitor, Thomas Ayoob, III, Esquire (Attorney Ayoob), acted as the Hearing Officer. Mike Palombo, Esquire, (Attorney Palombo) the Borough's labor counsel, represented the Borough at the hearing. The Borough presented documentary evidence and Zboyovsky's testimony. Shields testified that the injury to his left shoulder occurred several months after his right shoulder surgery. He testified that there was nothing specific that occurred that caused his shoulder issues. Hearing Transcript, (H.T.), January 18, 2011, at 33; R.R. at 104a. He stated that he did not injure his left shoulder during performance of police work. H.T. at 42; R.R. at 112a. After the hearing, both parties supplemented the record with transcripts of the depositions of their medical experts taken in the workers' compensation proceedings.
The Borough's medical expert, Dr. Tucker, was deposed twice. On March 23, 2010, Dr. Tucker testified that Shields had suffered a work-related right shoulder impingement which was healing satisfactorily. He reserved his opinion as to Shields' recovery until after a functional capacity examination was performed. With regard to Shields' left shoulder injury, Dr. Tucker believed this was idiopathic and not work-related or related to the right shoulder injury. Deposition of Jon B. Tucker, M.D. (Dr. Tucker Deposition I), March 23, 2010, at 28-33; R.R. at 250a-255a.
Dr. Tucker opined in a later deposition on February 22, 2011, that his examination of Shields' right shoulder was "totally normal" and that he saw no evidence of any residual impingement. Dr. Tucker believed Shields was faking his pain. Deposition of Jon B. Tucker, M.D. (Dr. Tucker Deposition II), February 22, 2011, at 23; R.R. at 428a. With regard to Shields' left shoulder, Dr. Tucker testified that his examination was "basically normal." Dr. Tucker Deposition II, at 24; R.R. at 429a.
Shields' medical expert, Dr. Rodosky, testified that he performed arthroscopic surgery on Shields' right shoulder. In July 2009, Shields complained of left shoulder pain. Dr. Rodosky performed left shoulder arthroscopic surgery in November of 2009 to repair a rotator cuff tear. He opined that Shields' left shoulder injury was caused by overuse to compensate for the right shoulder deficits. Deposition of Mark Rodosky, M.D., (Dr. Rodosky Deposition), January 21, 2010, at 31; R.R. at 315a. Dr. Rodosky opined that the left shoulder injury occurred as a result of the work incident. Based on the results of the Functional Capacity Evaluation, which indicated a permanent particle disability, he did not believe that Shields was fully recovered. Dr. Rodosky Deposition at 21; R.R. at 305a. He released Shields to medium duty with a 25-pound overhead lifting restriction.
In a letter dated February 22, 2011, Attorney Ayoob asked Shields' prior counsel, Mark Conboy, Esquire, (Attorney Conboy), and labor counsel for the Borough, Attorney Palombo, if they would object to the use of the January 18, 2011, Heart and Lung Hearing Act hearing transcript to determine Shields' eligibility under the Borough's Pension Plan. All counsel agreed that the transcript from the January 18, 2011, hearing, as supplemented by the submissions from counsel, would serve as the record for Borough Council's review of Shields' Pension Plan benefits claim.
Shields' Heart and Lung Act payments were terminated subsequent to the hearing as a result of Shields' resignation from employment which became effective April 8, 2011. So, the sole issue remaining for Borough Council was Shields' eligibility for Pension Plan benefits.
Utilizing the transcript from the January 18, 2011, hearing, Borough Council sustained the decision of the Borough Manager to deny Shields Pension Plan benefits. Borough Counsel found that Shields did not have a "Total and Permanent Disability" as that term was defined in Section 1.35 of the Pension Plan because: (1) Shields made a full recovery with respect to his right shoulder injury based on the credible testimony of Dr. Tucker; and (2) Shields made a full recovery with respect to his left shoulder injury based on the credible testimony of Dr. Tucker. Borough Council also concluded that Shields' left shoulder injury could not serve as the basis for any disability pension benefit because it was not the direct result of and did not occur in the line of duty. Borough Council found that Shields' testimony established that his left shoulder injury did not arise from the performance of any task, conduct, service or function. Rather, it resulted from doing everyday activities such as cooking, carrying groceries and cleaning.
Shields filed a statutory appeal. The common pleas court affirmed.
Shields now appeals to this Court. He raises four issues: (1) whether he was denied a full and complete hearing on his claim for Pension Plan benefits; (2) whether Council erred when it relied on Dr. Tucker's testimony instead of Dr. Rodosky's testimony; (3) whether there was a conflict of interest created by Zboyovsky acting as both Borough Manager and the Pension Plan Administrator; and (4) whether a conflict of interest existed when Attorney Ayoob acted in an adjudicatory position at the local agency level and then a prosecutorial position on appeal?
This Court's scope of review of a decision of a local agency where the common pleas court took no new evidence is limited to determining whether constitutional rights were violated, an error of law was committed, whether necessary findings of fact are supported by substantial evidence, and whether the procedure before the local agency was contrary to statute. United Police Society of Mt. Lebanon v. Mt. Lebanon Commission, 49 A.3d 4 (Pa. Cmwlth. 2012).
1.
First, Shields contends that the common pleas court erred when it found that "a full and complete record was made" on his claim for Pension Plan benefits. He claims that Borough Council erroneously relied on the record created in the Heart and Lung Act proceeding. He maintains he was entitled to a separate hearing because "the issues are separate and the testimony would necessarily be different, had a full and complete record had been made." Shields' Brief at 8. He argues that the Heart and Lung Act requires a showing that the injury is a "temporary employment restriction" and that the injury occurred while in the performance of employment duties; while a claim for Pension Plan benefits requires the claimant to prove a "total and permanent disability" which, according to Shields, entails "more in-depth medical examinations, analysis and testimony." Shields' Brief at 8. Shields contends that the depositions of Dr. Rodosky and Dr. Tucker were taken after the January 18, 2011, hearing and incorporated into the record. Therefore, he never had the opportunity to present rebuttal witnesses or describe his visits with each doctor. He claims this lost opportunity to present rebuttal witnesses alone must compel this Court to find the record was incomplete.
Shields began to see Dr. Rodosky in 2009 and first saw Dr. Tucker in October of 2009, so it is unclear to the Court why he could not describe those visits at the hearing which occurred, afterwards, on January 18, 2011.
First, this Court will address a preliminary matter raised by the Borough. The Borough contends that Shields waived this issue because Shields' attorney at the time, Attorney Conboy, expressly agreed that the January 18, 2011, hearing transcript, as supplemented, would serve as the record for Borough Council's review of Shields' request for Pension Benefits. In fact, the record contains a letter from Attorney Conboy to Attorney Ayoob confirming that "the parties agreed that [the January 18, 2011] hearing would ... be sufficient to serve as a Disability Pension hearing" and that "all evidence submitted on the Heart and Lung case would also serve the disability pension claim." Letter from Mark Conboy, Esquire to Thomas Ayoob, III, Esquire, March 23, 2011, at 1; R.R. at 509a.
Attorney Conboy reconfirmed his agreement in a letter to Attorney Ayoob dated April 5, 2011:
You have also inquired as to whether ... the evidence submitted for the Heart and Lung Benefits claim could likewise be utilized to decide the pension disability claim. We are agreeable to the same and do not feel that additional evidence would need to be submitted for the pension benefits claim.Letter from Mark Conboy, Esquire to Thomas Ayoob, III, Esquire, April 5, 2011, at 1; R.R. at 222a.
Accordingly, it was stipulated at the time when the matter was before Borough Council that a full and complete record would consist of the January 18, 2011, hearing transcript, as supplemented.
While it is true that no adjudication of a local agency is valid unless the agency affords a party his or her due process rights of reasonable notice and an opportunity to be heard, due process does not prohibit the waiver of those rights. Adams v. Lawrence Twp. Bd. of Sup'rs, 621 A.2d 1119 (Pa. Cmwlth. 1993) (an employee waives a due process claim of being deprived of a hearing when he or she, while represented by counsel, voluntarily relinquishes a right to a hearing). It is clear from the record here that Shields, represented by counsel, voluntarily relinquished his right to a separate hearing on his Pension Plan benefits claim. Therefore, Borough Council was not required to provide Shields a separate hearing on the issue of his right to Pension Plan benefits.
In any event, Shields does not explain, beyond undeveloped generalizations, how exactly he was prejudiced. The purpose of the Heart and Lung Act is to provide a full salary to employees in specified dangerous occupations who have been injured on the job and who are expected to recover and return to work in the foreseeable future. Organ v. Pennsylvania State Police, 535 A.2d 713 (Pa. Cmwlth. 1988). The Pension Plan provides benefits to police officers who have sustained a "total and permanent disability" in the line of duty. Section 5.01 of the Brentwood Borough Police Pension Plan at 17; R.R. at 169a.
Although the elements of proof differed, the evidence of record produced during the Heart and Lung Act proceedings provided the necessary information upon which Borough Council could full and fairly determine Shields' entitlement under the Pension Plan.
Both parties were given the opportunity to submit proposed findings, conclusions of law and legal arguments to Borough Council regarding Shields' entitlement to Pension Plan benefits. Shields submitted medical records as well as the deposition of Dr. Rodosky which supported that he had a permanent work restriction of medium duty with a maximum overhead lift of twenty-five pounds bilaterally. Shields also submitted a Functional Capacity Evaluation dated July 28, 2010, which placed him in a medium duty capacity as the result of residual disability in both shoulders. Shields' counsel cross-examined Dr. Tucker during his depositions, and did in fact, attempt to elicit from Dr. Tucker that Shields' injuries were permanent and that his left shoulder injury was work-related.
Borough Council considered evidence presented by Shields' former attorney that his shoulder injuries were permanent and that they occurred in the line of duty. Borough Council simply did not credit his evidence. That does not amount to a deprivation of due process.
2.
Next, Shields argues that the common pleas court erred when it deferred to the "fact finding authority" of Borough Council which credited the "equivocal" testimony of Dr. Tucker.
In support, Shields points out that Dr. Tucker limited Shields to "medium duty" based on a temporary "Physical Capacities Evaluation" he performed on Shields on March 23, 2009. See Physical Capacities Evaluation, March 23, 2009, at 1; R.R. at 142a. Yet, in his second deposition, relying on the same diagnosis, Dr. Tucker concluded the opposite, i.e., that Shields was 100% recovered. He claims Dr. Tucker's medical testimony was, therefore, equivocal and incompetent. Lewis v. Workmen's Compensation Appeal Board (Pittsburgh Board of Education), 508 Pa. 360, 498 A.2d 800 (1985) (medical evidence must be unequivocal as to both diagnosis and prognosis to be legally competent evidence).
Medical testimony will be found unequivocal if the medical expert, after providing a foundation, testifies that in his professional opinion that he believes a certain fact or condition exists. Lewis. Medical testimony is equivocal if, after a review of a medical expert's entire testimony, it is found to be merely based on possibilities. Signorini v. Workmen's Compensation Appeal Board United Parcel Service), 664 A.2d 672 (Pa. Cmwlth. 1995). The Lewis Court cautioned that in conducting such a review the medical witness's entire testimony must be reviewed and taken as a whole and a final decision should not rest upon a few words taken out of the context of the whole testimony.
Reviewing Dr. Tucker's medical testimony as a whole, this Court is not convinced that it was equivocal. When Dr. Tucker first evaluated Shields in March of 2009, he diagnosed him with a labral tear of his right shoulder. Dr. Tucker recommended surgery. Dr. Tucker's Physical Capacity Evaluation performed in March 2009, before the arthroscopic surgery of Shields' right shoulder in May of 2009, limited Shields to medium duty but concluded that his restrictions were "temporary." Five months after the arthroscopic surgery, Dr. Tucker performed a second Physical Capacity Evaluation on October 29, 2009. He again limited Shields to medium duty and again indicated that the restrictions were temporary. He specifically stated in a letter to the State Workers' Insurance Fund that objectively, Shields' right shoulder appeared to be normal and that his most recent Physical Capacity Evaluation was based on Shields' subjective complaints of pain. He expected Shields to be recovered by that time. He suggested a Functional Capacity Evaluation to determine Shields' functional and effort levels. Letter from Jon B. Tucker, M.D. to State Workers' Insurance Fund, November 19, 2009 at 4; R.R. at 146a.
At the time Dr. Tucker was first deposed in March of 2010, a Functional Capacity Evaluation had not been performed. Dr. Tucker again opined that Shields' exam was "quite good" and that, on the average, most individuals recover from this minor surgery after three months. Dr. Tucker Deposition I at 30-31; R.R. at 252a-253a.
A Functional Capacity Evaluation was performed at the request of Dr. Rodosky by the Centers for Rehab Services on July 28, 2010. See Functional Capacity Evaluation, July 28, 2010, at 1-3; R.R. at 212a-214a. The Functional Capacity Evaluation placed Shields in a medium duty capacity with overhead lifting restrictions of twenty-five pounds. Shields scored "Valid" on the validity profile which measured symptom magnification, malingering, and pain behavior.
Meaning the evaluator believed his responses were reliable and trustworthy.
At his second deposition on February 22, 2011, Dr. Tucker testified that he examined Shields again in October of 2010. He took x-rays of both shoulders which were normal. There was nothing that correlated with his complaints of pain. Dr. Tucker Deposition II at 19-20; R.R. at 424a-425a. He also had a full range of motion in his left and right shoulders and negative impingement signs. He had a good and full recovery with normal muscle tone and bulk. His rotator cuff strength was normal. In sum, "his right shoulder examination, objectively, was totally normal and the positive findings were only notable for findings that one would make a diagnosis of pain behavior mannerisms or non-organic pain in the right shoulder." Dr. Tucker Deposition II at 22-23; R.R. at 427a-428a. The left shoulder examination was also basically normal. Dr. Tucker Deposition II at 24; R.R. at 429a. Dr. Tucker also watched a surveillance tape of Shields taken in December of 2010, which showed Shields reaching above his shoulder level and lifting a box onto his trunk. Dr. Tucker Deposition II, at 35; R.R. at 440a. Dr. Tucker testified that it confirmed his observations all along that Shields was "manifesting symptom magnification and pain behavior in the face of two common diagnoses that generally, when treated competently, lead to a full recovery." Dr. Tucker Deposition II at 36; R.R. at 441a.
With regard to the July 2010 Functional Capacity Evaluation, Dr. Tucker explained that a physician's expert opinion may "trump" the Functional Capacity Evaluation." Dr. Tucker Deposition II, at 39; R.R. at 444a.
Dr. Tucker concluded within a reasonable degree of medical certainty that the left shoulder injury was not work related, and that Shields had fully recovered from his left shoulder surgery which took place eleven months earlier. Dr. Tucker Deposition II at 25-26; R.R. at 430a-431a. With regard to Shields' right shoulder, Dr. Tucker opined that Shields had fully recovered and the doctor placed no limitations on his use of his right shoulder. Dr. Tucker Deposition II at 30; R.R. at 435a.
On cross-examination, Dr. Tucker did not waiver from his opinions. Shields argues that "Dr. Tucker blatantly ignored the results of the FCE [Functional Capacity Evaluation] he prescribed for Mr. Shields." Shields' Brief at 9. A review of the record does not corroborate that this is what happened and it is not consistent with what Shields perceives as a discrepancy or conflict in Dr. Tucker's testimony.
Simply because Dr. Tucker recommended a Functional Capacity Evaluation, but did not wholly agree with it in the end, does not mean that his testimony was equivocal. All along, Dr. Tucker's objective findings did not comport with Shields' subjective complaints of pain and immobility. He testified consistently in both depositions that objectively Shields' shoulders appeared to be normal, and that he discerned no reason why Shields continued to complain of severe, disabling pain.
Shields contends that Dr. Tucker offered "two distinct opinions as to Shields' ability to return to work." Shields' Brief at 11. However, the medium-duty restrictions Dr. Tucker placed on Shields after the March and October of 2009 Physical Capabilities Evaluations were on a "temporary basis" at a time when Shields' conditions were changing. Dr. Tucker Deposition II at 67; R.R. at 472a. The fact that his opinion that Shields could not return to work at that time does not necessarily conflict with his opinion over a year later that he could return to work. Dr. Tucker then examined Shields in October of 2010 after the Functional Capacity Evaluation performed in July of 2010, and on that visit Dr. Tucker observed signs of symptom magnification. His expert opinion trumped the Functional Capacity Evaluation.
Shields also argues that Borough Council erred when it credited Dr. Tucker's opinions because the doctor only examined Shields three times, whereas Dr. Rodosky examined and treated him on sixteen occasions. He also claims Dr. Rodosky is renowned and his credentials are impressive.
Shields' argument is nothing more than an improper attack on Borough Council's credibility determinations. It was within Borough Council's fact-finding authority to make determinations of credibility where medical expert testimony was contrary and to accept the testimony of one expert and reject the testimony of a contrary medical expert. Campbell v. Workers' Compensation Appeal Board (Pittsburgh Post- Gazette), 954 A.2d 726 (Pa. Cmwlth. 2008).
3.
Shields next contends that the common pleas court erred because it failed to consider Zboyovsky's "motives" and his "inherent conflict of interest" when deciding issues involving the Pension Plan. He argues that a Pension Plan Administrator must maintain a fiduciary relationship with the Pension Plan. Shields contends that allowing Zboyovsky to act as Borough Manager and the Plan Administrator poses an "inherent conflict of interest" because the Borough Manager stands in the position of having knowledge of the Borough's financial condition. Shields asserts that Zboyovsky "knew" that the Pension was insolvent after having paid disability pensions to two other police officers within a short time of Shields' request. Shields asserts that with that knowledge, Zboyovsky could not maintain a fiduciary duty the Pension Plan. Shields postulates that Zboyovsky simply denied his request because the Borough could not afford to pay him benefits.
Section 1.29 of the Pension Plan defined the "Plan Administrator" as "the Borough Manager or the individual appointed for the purpose of supervising and administering the provisions of the Plan." Brentwood Borough Police Pension Plan, Section 1.29 at 6; R.R. at 158a.
This Court first rejects Shields' "inherent conflict" argument. In McCarrell v. Cumberland County Employees Retirement Board, 547 A.2d 1293 (Pa. Cmwlth. 1988), this Court found that there was no conflict of interest when members of a county retirement board, although obliged to act in the interest of the beneficiaries of the retirement fund, also served in their elected capacity as chief financial officers of county government. This Court explained:
By their characterization of the Board members as 'fiduciaries', the appellants seem to suggest that all duties peculiar to these elected officials' positions fall away except with respect to those owed to the current retirees. We are not unaware that one in a fiduciary relationship with a beneficiary is under a duty to act solely in the interest of that beneficiary. See Restatement (Second) of Trusts § 170 comment a (1957). Moreover, we note that the concept of 'fiduciary relation,' by definition does not
permit conflicts of interest. Id. at § 170 comment b. However, the reality of this situation is that these Board members are in a fiduciary relationship with all beneficiaries of the Fund, including the current employees of the County as well as the current retirees. In addition, the Board members have the responsibility of safeguarding the County's fiscal welfare. Section 9 of the Law, 16 P.S. $ 11659, simply cannot be read out of context and without regard for the multiple duties placed upon the Board members not only by the Law, but also by virtue of their elected positions. (Emphasis added).McCarrell, 547 A.2d at 1296.
The Board serves two masters. Not only is it obliged to act in the interest of the beneficiaries of the Fund, but also, it must operate in its capacity as keeper of the public purse. The Board members are elected to serve as the chief financial officers of the County government. At the same time, by statutory mandate, the Board is the ultimate guarantor of the interest, reserves and benefits generated by the Fund, Section 11 of the Law, 16 P.S. § 11661, and also serves as payor of the expenses of administration of the Fund, Section 5 of the Law, 16 P.S. § 11655. The Board, faced with the dual obligations imposed upon it, balanced the interests of both masters it serves in the exercise of sound fiscal policy. We cannot conclude that it erred in doing so. (Emphasis added).
County Pension Law, Act of August 31, 1971, P.L., as amended, 16 P.S. §§11651-11682. --------
As for Shields' assertion that Zboyovsky denied his request because the Borough could not afford to pay him benefits, this Court rejects this argument because it is nothing more than speculation and without support in the record. Rather, the record contains ample support that the only reason Shields was denied Pension Plan benefits was because Borough Council was convinced by the Borough's medical expert that Shields made a full recovery and was not disabled, with respect to both shoulders.
4.
Last, Shields contends that the common pleas court erred when it found that Attorney Ayoob did not have a conflict of interest when he acted in an adjudicatory position at the local agency level and then a prosecutorial position on appeal before the common pleas court.
Our courts have held that municipal adjudicative bodies must avoid unnecessary conflicts and commingling of incompatible functions whenever possible. Weiner v. Board of Supervisors of Lower Macungie Township, 547 A.2d 833 (Pa. Cmwlth. 1988). In Piper Group, Inc. v. Bedminster Township Board of Supervisors, 992 A.2d 224 (Pa. Cmwlth. 2010), this Court held that the solicitor for the township board of supervisors did not impermissibly commingle his adversarial and adjudicatory functions in proceedings before the board of supervisors on a development application. This Court noted that in order to avoid bias, special counsel was appointed to independently represent the township in the proceedings before the board of supervisors. This Court also stated that it was not improper for the solicitor, once the proceedings before the board of supervisors adjourned, to represent the township in further proceedings initiated by the landowners. Piper, 992 A.2d at 241.
Here, while Shields' claims for Pension Plan and Heart and Lung Act benefits were pending before Borough Council, the Borough's independent labor counsel, Attorney Palombo, represented the Borough in a position adversarial to the claim. Attorney Ayoob served as the Hearing Officer during the January 18, 2011, hearing. Attorney Ayoob's role was as a legal advisor to Borough Council as the adjudicator. He did not take on an adversarial role in the proceedings before Borough Council. As in Piper, once Borough Council made its decision to deny the claim for Pension Plan benefits, Attorney Ayoob was free to represent the Borough and defend Borough Council's decision in the statutory appeal before the common pleas court. There was no impermissible commingling of prosecutorial and adjudicatory functions which resulted in any bias towards Shields.
For the foregoing reasons, the decision of the common pleas court is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 29th day of January, 2014, the order of the Court of Common Pleas of Allegheny County in the above-captioned matter is hereby AFFIRMED.
/s/_________
BERNARD L. McGINLEY, Judge