Jones v. Board of Trustees of the Police Pension Fund of the City of Bloomington

NO. 4-07-0687 Filed 9/15/08
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
PATRICK JONES, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
THE BOARD OF TRUSTEES OF THE POLICE ) Nos. 06MR243
PENSION FUND OF THE CITY OF ) 06MR276
BLOOMINGTON; an Illinois Administra- )
tive Agency and KAREN BAKER, DAN )
DONATH, CHARLES CROW, FRANK HAINES, )
and CURT OYER, Members of the Board ) Honorable
of Trustees, ) Charles G. Reynard,
Defendants-Appellants. ) Judge Presiding.
_________________________________________________________________
JUSTICE MYERSCOUGH delivered the opinion of the court:
Plaintiff, Patrick Jones, applied to the Board of
Trustees of the Police Pension Fund of the City of Bloomington
(Board) for a disability pension pursuant to article III of the
Illinois Pension Code (Pension Code) (40 ILCS 5/3-101 through 3-
152 (West 2006)). The Board denied Jones a line-of-duty disabil-
ity pension but granted him a nonduty disability pension.
In August and October 2006, Jones filed complaints for
administrative review naming the Board and members of the Board--
Karen Baker, Dan Donath, Charles Crow, Frank Haines, and Curt
Oyer--all collectively referred to as "the Board," as defendants.
On administrative review, the circuit court reversed
the Board's decision. The Board appeals, arguing that its
decision to deny Jones a line-of-duty disability pension was
proper because Jones was not disabled as the result of an injury
incurred in the performance of an act of duty. We disagree and
affirm the circuit court's reversal of the Board's decision.
I. BACKGROUND
On February 24, 2006, Jones filed an application for
disability benefits. Jones alleged he could no longer perform
full duties as a police officer due to an injury received in a
automobile accident that occurred while Jones was on duty.
On July 26, 2006, the Board held a hearing on the
application. At the hearing, the Board admitted into evidence
the application for benefits, the notice of hearing, the job
description for patrol officer, the employee-injury report, the
Illinois traffic-crash report, the incident report, medical
records, and the independent medical-examination reports from
three doctors.
Jones testified that he had been a patrol officer for
the City of Bloomington for 12 years. On June 13, 2005, at
approximately 8 a.m., Jones was involved in a motor-vehicle
accident. Jones was on routine patrol in unit 51, the transport
van, which Jones described as a one-ton Chevrolet van. The
record does not reflect whether the van was a marked police
vehicle. However, the accident report indicates the vehicle was
black and white.
When asked where he was headed when the accident
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occurred, Jones testified:
"I was going out towards Airport Road,
which I believe they had complaints about
some speeders or whatever. I was just on
routine patrol, just to investigate something
of that nature."
As Jones drove toward Airport Road, a man driving a Buick "shot
out" in front of Jones' vehicle. Jones made an evasive maneuver
that kept from hitting the Buick broadside. Due to oncoming
traffic, however, Jones had to pull back into the right-hand
lane. The Buick then hit the side of the transport van. Jones
suffered injuries to his shoulder and back and later underwent
back surgery. The Board adjourned after the hearing.
On August 30, 2006, Jones filed a complaint for admin-
istrative review in McLean County case No. 06-MR-243. The
complaint alleged that the Board had not yet filed a decision on
Jones' application for a line-of-duty disability pension. The
complaint further alleged that the president of the Board told
Jones, ex parte, that the Board was granting Jones a nonduty
disability pension. Defendants filed as their answer a copy of
the administrative record.
On September 20, 2006, the Board issued its written
decision. The Board found Jones physically disabled for service
in the police department so as to render necessary his retire-
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ment. The Board concluded, however, that Jones' disability was a
nonduty disability pursuant to section 3-114.2 of the Pension
Code (40 ILCS 5/3-114.2 (West 2006)) rather than a line-of-duty
disability pension (40 ILCS 5/3-114.1(a) (West 2006)). The Board
concluded, relying primarily on White v. City of Aurora, 323 Ill.
App. 3d 733, 753 N.E.2d 1244 (2001), that Jones was not entitled
to a line-of-duty disability pension because driving a van did
not involve a "special risk" as required by the definition of
"act of duty." As such, the Board awarded Jones a pension
totaling 50% of his salary as opposed to the 65% he would have
received from a line-of-duty disability pension.
On October 19, 2006, Jones filed a second complaint for
administrative review in McLean County case No. 06-MR-276. This
complaint alleged the Board issued its written decision on
September 20, 2006, awarding Jones only a nonduty pension. Jones
sought reversal of the Board's decision and an award of a line-
of-duty pension.
In November 2006, defendants filed an answer in case
No. 06-MR-276 and a motion to dismiss case No. 06-MR-243. In
February 2007, the parties stipulated and agreed to consolidate
the two cases. On February 19, 2007, the trial court consoli-
dated the two cases.
In July 2007, the trial court entered a written order
reversing the Board's decision. The court entered judgment for
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Jones, finding him eligible for a line-of-duty pension.
This appeal followed.
II. ANALYSIS
On appeal, the Board argues that its decision to deny
Jones a line-of-duty pension was proper because Jones was not
disabled as the result of an injury incurred in the performance
of an act of duty.
A. Standard of Review
This court reviews the Board's decision, not the
decision by the circuit court. Marconi v. Chicago Heights Police
Pension Board, 225 Ill. 2d 497, 531, 870 N.E.2d 273, 292 (2006).
The parties dispute the appropriate standard of review. The
Board argues it was required to weigh the evidence and make
factual determinations when considering whether Jones sustained
his burden of proof to establish that his disability arose from
an "act of duty." Therefore, the Board argues, the manifest-
weight-of-the-evidence standard is the appropriate standard of
review. Jones argues that where the relevant facts are undis-
puted, and the dispute hinges on the term "act of duty," this
court's review is de novo. .
The applicable standard of review depends upon
whether the issue presented is one of fact, one of law, or a
mixed question of law and fact. Marconi, 225 Ill. 2d at 532, 870
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N.E.2d at 292. This court will reverse a ruling on a question of
fact only if it is against the manifest weight of the evidence.
Marconi, 225 Ill. 2d at 532, 870 N.E.2d at 292-93. Questions of
law are reviewed de novo. Marconi, 225 Ill. 2d at 532, 870
N.E.2d at 293. Mixed questions of law and fact are reviewed
under the clearly erroneous standard. Marconi, 225 Ill. 2d at
532, 870 N.E.2d at 293.
Here, the issue is whether this case involves (1) the
interpretation of the statutory term "act of duty," which re-
quires de novo review, or (2) an examination of the legal effect
of a given set of facts, which is a mixed question of law and
fact requiring review under the clearly erroneous standard. See
Sarkis v. City of Des Plaines, 378 Ill. App. 3d 833, 836, 882
N.E.2d 1268, 1270 (2008) (examining whether an officer injured
while lifting a malfunctioning railroad crossing gate was injured
in the performance of an act of duty). Under the clearly errone-
ous standard, the reviewing court will reverse the administrative
agency only where the court is "'left with the definite and firm
conviction that a mistake has been committed.'" AFM Messenger
Service, Inc. v. Department of Employment Security, 198 Ill. 2d
380, 395, 763 N.E.2d 272, 282 (2001), quoting United States v.
United States Gypsum Co., 333 U.S. 364, 395, 92 L. Ed. 746, 766,
68 S. Ct. 525, 542 (1948).
Courts have generally held that when the facts are
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undisputed, the interpretation of the term "act of duty" in the
Pension Code is an issue of statutory construction to be reviewed
de novo. See Sarkis, 378 Ill. App. 3d at 836, 882 N.E.2d at
1270; White, 323 Ill. App. 3d at 735, 753 N.E.2d at 1246 (where
the facts are undisputed, and the Board interpreted the meaning
of "act of duty" contained in the statute, the issue was one
purely of statutory interpretation); Fedorski v. Board of Trust-
ees of the Aurora Police Pension Fund, 375 Ill. App. 3d 371, 373,
873 N.E.2d 15, 17 (2007) (finding the dispute hinged on the
determination of "act of duty" and, therefore, de novo review
applied); Alm v. Lincolnshire Police Pension Board, 352 Ill. App.
3d 595, 598, 816 N.E.2d 389, 391 (2004) (de novo review applied
where the facts were undisputed and the only issue was the
meaning of "act of duty"). However, in Merlo v. Orland Hills
Police Pension Board, No. 1-06-3729 (June 4, 2008), Ill. App.
3d , , 890 N.E.2d 612, 615 (2008), on what appeared to be
undisputed facts, the appellate court found that the issue of
whether the police officer was performing an act of duty pre-
sented a mixed question of fact and law, and therefore the
clearly erroneous standard of review applied. See also Provena
Covenant Medical Center v. Illinois Department of Revenue, No. 4-
07-0763, slip op. at 7 (August 26, 2008), Ill. App. 3d ,
, N.E.2d , (applying the clearly erroneous standard
where the facts were undisputed and the question was whether
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those facts entitled the plaintiff to an exemption under the
Property Tax Code).
This court tends to agree with the Merlo court, that an
examination of the legal effect of a given set of facts presents
a mixed question of fact and law, requiring the clearly erroneous
standard of review. See also City of Belvidere v. Illinois State
Labor Relations Board, 181 Ill. 2d 191, 205, 692 N.E.2d 295, 302
(1998). However, under either the de novo or clearly erroneous
standard, Jones is entitled to a line-of-duty pension.
The primary consideration in construing a statute is to
determine and give effect to the legislature's intent. People v.
Skillom, 361 Ill. App. 3d 901, 906, 838 N.E.2d 117, 122 (2005).
A court must consider the statute in its entirety. People v.
Davis, 199 Ill. 2d 130, 135, 766 N.E.2d 641, 644 (2002). "The
most reliable indicator of legislative intent is the language of
the statute, which, if plain and unambiguous, must be read
without exception, limitation, or other condition." Davis, 199
Ill. 2d at 135, 766 N.E.2d at 644. "Pension statutes are to be
liberally construed in favor of the pensioner." Harroun v.
Addison Police Pension Board, 372 Ill. App. 3d 260, 263, 865
N.E.2d 273, 277 (2007).
B. Jones Is Entitled to a Line-of-Duty Pension
1. Eligibility for Line-of-Duty Pension Depends
Upon Whether the Officer's Injury Occurred as a Result
of the Performance of an Act of Duty
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Section 3-114.1(a) of the Pension Code provides for a
pension equal to 65% of the officer's salary if the officer
becomes disabled as a result of "the performance of an act of
duty." 40 ILCS 5/3-114.1(a) (West 2006). Specifically, section
3-114.1(a) provides, in relevant part, as follows:
"If a police officer as the result of
sickness, accident[,] or injury incurred in
or resulting from the performance of an act
of duty, is found to be physically or men-
tally disabled for service in the police
department, so as to render necessary his or
her suspension or retirement from the police
service, the police officer shall be entitled
to a disability retirement pension equal to
*** 65% of the salary attached to the rank on
the police force held by the officer at the
date of suspension of duty or retirement." 40
ILCS 5/3-114.1(a) (West 2006) (entitled "Dis-
ability pension--Line of duty").
If, however, a police officer "becomes disabled as a result of
any cause other than the performance of any act of duty," he or
she is entitled to a disability pension of 50% of the salary
attached to the officer's rank on the police force at the date of
suspension of duty or retirement. 40 ILCS 5/3-114.2 (West 2006)
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(entitled "Disability pension--Not on duty").
Something more than being "on duty" is required to
receive a line-of-duty pension. Sarkis, 378 Ill. App. 3d at 837,
882 N.E.2d at 1271 ("An officer does not perform an 'act of duty'
merely by being on duty at the relevant time"). Although article
III of the Pension Code, pertaining to police pension funds in
municipalities with populations under 500,000, does not contain a
definition of "act of duty," article V of the Pension Code,
pertaining to police pension funds in municipalities with popula-
tions exceeding 500,000, does. See 40 ILCS 5/5-113 (West 2006).
The act-of-duty definition contained in article V of the Pension
Code applies to the use of that term in article III. See Robbins
v. Board of Trustees of the Carbondale Police Pension Fund, 177
Ill. 2d 533, 541, 687 N.E.2d 39, 43-44 (1997). Section 5-113
defines "act of duty" as follows:
"Any act of police duty inherently in-
volving special risk, not ordinarily assumed
by a citizen in the ordinary walks of life,
imposed on a policeman by the statutes of
this State or by the ordinances or police
regulations of the city in which this
[a]rticle is in effect or by a special as-
signment; or any act of heroism performed in
the city having for its direct purpose the
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saving of the life or property of a person
other than the policeman." 40 ILCS 5/5-113
(West 2006).
Not all police functions involve "special risk." See,
e.g., Morgan v. Retirement Board of the Policeman's Annuity &
Benefit Fund, 172 Ill. App. 3d 273, 277, 526 N.E.2d 493, 496
(1988) (holding that an officer who was injured in fall from
chair while taking a police report at the front desk of the
police station was not entitled to line-of-duty pension because
the act of taking a police report did not involve a special risk
not ordinarily assumed by an ordinary citizen). However, "spe-
cial risk" is not limited to "'inherently dangerous' activities."
Johnson v. Retirement Board of the Policemen's Annuity & Benefit
Fund, 114 Ill. 2d 518, 521, 502 N.E.2d 718, 720 (1986).
In Johnson, a police officer on traffic-control duty
slipped and fell while crossing the street in response to a
citizen's request for assistance. Johnson, 114 Ill. 2d at 520,
502 N.E.2d at 719. The supreme court rejected the argument that
the officer did not assume a special risk because he merely
crossed the street as any ordinary citizen would do. Johnson, 114
Ill. 2d at 520, 502 N.E.2d at 719. Instead, the supreme court
focused on the capacity in which the officer was acting at the
time of injury. Johnson, 114 Ill. 2d at 521-22, 502 N.E.2d at
720.
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The supreme court found that the officer performed an
"act of duty" because when he suffered the injury, the officer
was discharging his sworn duties by responding to a citizen's
call. Johnson, 114 Ill. 2d at 522, 502 N.E.2d at 720. The
officer had no choice but to respond, and no comparable civilian
occupation existed. Johnson, 144 Ill. 2d at 522, 502 N.E.2d at
720 (noting that an officer responding to a citizen "must have
his attention and energies directed towards being prepared to
deal with any eventuality").
The supreme court also noted that for a line-of-duty
pension, the officer need not be injured "by [the] act of duty"
but rather that the injury occur "'in the performance of an act
of duty.'" (Emphasis in original.) Johnson, 114 Ill. 2d at 522,
502 N.E.2d at 720, quoting Ill. Rev. Stat. 1983, ch. 108 1/2,
par. 5-154 (now 40 ILCS 5/5-154.1 (West 2006)). The court
concluded that the officer's "act of duty was the act of respond-
ing to the call of a citizen for assistance." Johnson, 114 Ill.
2d at 522, 502 N.E.2d at 720. While performing that duty, the
officer was injured. Johnson, 114 Ill. 2d at 522, 502 N.E.2d at
720. As such, he was eligible for a line-of-duty disability
pension. Johnson, 114 Ill. 2d at 522, 502 N.E.2d at 720.
Since Johnson, courts have found the police officer
injured in the performance of an act of duty where the officer
(1) fell through a porch while serving a notice to appear (Wagner
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v. Board of Trustees, 208 Ill. App. 3d 25, 29, 566 N.E.2d 870,
873 (1991)); (2) was riding a bicycle on patrol (Alm, 352 Ill.
App. 3d at 601, 816 N.E.2d at 394); (3) injured his shoulder
while raising a railroad crossing gate (Sarkis, 378 Ill. App. 3d
at 841, 882 N.E.2d at 1274); and (4) responded to a civilian call
reporting juveniles stacking concrete parking blocks in a parking
lot and suffered an injury when he attempted to remove the hazard
by unstacking the concrete blocks (Merlo, slip op. at 2, Ill.
App. 3d at , 890 N.E.2d at 617). Other courts have found the
officer was not injured in the performance of an act of duty
where (1) the officer was injured when he attempted to sit down
in a chair at his desk to fill out a police report and the chair
rolled out from underneath him (Morgan, 172 Ill. App. 3d at 276-
77, 526 N.E.2d at 496); (2) the officer was injured while exiting
his police vehicle to place a parking citation on an illegally
parked car (White, 323 Ill. App. 3d at 736, 753 N.E.2d at 1247
(where police department also employed civilians to issue parking
citations)); and (3) the evidence technician was injured when the
unmarked police vehicle in which he was riding as a passenger was
struck while stopped at a red light (Fedorski, 375 Ill. App. 3d
at 375, 873 N.E.2d at 19). This court has never addressed
whether an officer injured while on patrol duty was injured in
the performance of an act of duty and entitled to a line-of-duty
pension.
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2. Jones Was Injured in the Performance of an Act of Duty
The Board argues Jones only encountered the general
risks attendant to driving a car and driving the vehicle on
routine patrol did not involve a special risk. The Board relied
below and relies on appeal on White, 323 Ill. App. 3d 733, 753
N.E.2d 1244, to conclude that Jones was not eligible for a line-
of-duty disability pension.
In White, a divided panel of the Appellate Court,
Second District, concluded that the officer was not entitled to a
line-of-duty disability pension. White, 323 Ill. App. 3d at 736,
753 N.E.2d at 1247. The officer, who was on patrol, slipped
while exiting his vehicle to place a parking citation on an
illegally parked vehicle. White, 323 Ill. App. 3d at 734, 753
N.E.2d at 1245. Although the police department required its
officers to issue parking tickets, the department also employed
civilians to issue tickets. White, 323 Ill. App. 3d at 736, 753
N.E.2d at 1247.
The White court concluded that exiting a vehicle to
place a traffic ticket on an illegally parked car did not involve
a special risk not assumed by ordinary citizens. White, 323 Ill.
App. 3d at 736, 753 N.E.2d at 1247. The court noted such an act,
exiting a vehicle to place a flyer or notice on another vehicle,
is one performed by ordinary citizens. White, 323 Ill. App. 3d
at 736, 753 N.E.2d at 1247.
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Approximately three years later, another divided panel
of the Second District specifically rejected White and found that
the majority in White focused on the act performed rather than
the capacity in which the officer was acting. Alm, 352 Ill. App.
3d at 602, 816 N.E.2d at 395. In Alm, the officer injured his
knee while pedaling a bicycle on bicycle patrol, although the
injury was not the result of any "specific, identifiable, physi-
cal trauma." Alm, 352 Ill. App. 3d at 601, 816 N.E.2d at 394.
The Alm court rejected the argument that the officer
was simply riding a bicycle. Alm, 352 Ill. App. 3d at 602, 816
N.E.2d at 394. Instead, the court noted that the focus was not
on the specific act at the time of the injury--riding a bike--but
on the capacity in which the officer was acting--bicycle patrol
officer. Alm, 352 Ill. App. 3d at 602, 816 N.E.2d at 394. The
Alm court found that in the capacity of bicycle patrol officer,
the officer faced special risks not faced by ordinary citizens,
including (1) riding the bicycle at night over varying terrain;
(2) looking out for his own personal safety while also remaining
diligent in the performance of his patrol duties; and (3) carry-
ing a significant amount of additional weight. Alm, 352 Ill.
App. 3d at 601, 816 N.E.2d at 393. These facts elevated the
risks of falls, collisions, and dangerous encounters. Alm, 352
Ill. App. 3d at 601, 816 N.E.2d at 393. As such, even though the
officer did not face those special risks at the exact time he
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suffered the injury, the officer was performing an act of duty
when he suffered his injury and was entitled to line-of-duty
benefits. Alm, 352 Ill. App. 3d at 601, 816 N.E.2d at 393.
We agree with the reasoning of Alm and reject the
reasoning of White. As stated by the supreme court in Johnson,
the "crux is the capacity in which the officer was acting."
Johnson, 114 Ill. 2d at 522, 502 N.E.2d at 720. In White, the
court improperly focused on the specific act--exiting a car--and
not the capacity in which the officer was acting.
In the instant case, as in Alm, the capacity in which
Jones was acting when he was injured was one involving special
risk. The job description for a patrol officer, which was part
of the administrative record, provides:
"The job of [p]atrol [o]fficer is gen-
eral duty police work in the protection of
life and property and the enforcement of laws
and ordinances. The work involves preventive
patrol, preliminary investigation, traffic
enforcement and regulation, and preservation
of social order and public peace by means of
patrolling in cars or on foot in a designated
area where the officer is accountable."
Among the listed duties and skills, the patrol officer must (1)
"[p]ossess safety-minded driving ability and be conscious of all
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types of road conditions either in the course of normal patrol or
when responding to emergency call by use of the red light and
siren" and (2) control and regulate vehicular and pedestrian
traffic as needed. The job description also recognizes that a
patrol officer is a "visible and tangible around-the-clock
representative of the city government process and can be summoned
to respond on short notice" and is expected by citizens to
provide a variety of social services. Such social services
include assisting persons who have no one to whom they can turn
to for help, mediating neighborhood conflicts, maintaining
"constant vigilance" patrolling assigned areas, helping stranded
motorists, providing transportation services for those in need,
and giving directions to out-of-town motorists.
While job title alone is insufficient to establish
performance of an act of duty (Fedorski, 375 Ill. App. 3d at 375,
873 N.E.2d at 19), Jones was performing the duties of patrol
officer at the time of the injury, and those duties involved
special risk. As the job description reflects, Jones had to,
like the officer in Johnson, have his "attention and energies
directed toward being prepared to deal with any eventuality."
Johnson, 114 Ill. 2d at 522, 502 N.E.2d at 720. Like the officer
in Alms on bicycle patrol, Jones faced special risks on patrol,
risks not assumed by the ordinary citizen driving down the
street. Those risks included being prepared to respond to
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emergency calls, deterring crime, responding to citizen requests,
controlling and regulating traffic, and maintaining constant
vigilance. Moreover, Jones testified he was going to investigate
complaints about speeders on Airport Road.
The Board asserts that Jones only encountered the
general risk attendant to driving a car. But even if driving a
car involves only an ordinary risk, Jones was acting in a capac-
ity that involved special risk when he was injured--routine
patrol. See, e.g., Fedorski v. Board of Trustees of the Aurora
Police Pension Fund, 375 Ill. App. 3d 371, 873 N.E.2d 15 (2007)
(noting that the fact that the injury could have befallen anyone
traveling in an automobile does not by itself foreclose a line-
of-duty disability pension; the focus is not on the mechanism of
the injury but on the capacity in which the officer was acting
while injured).
The Board also argues this case is almost identical
factually to Fedorski, 375 Ill. App. 3d 371, 873 N.E.2d 15,
another Appellate Court, Second District, case that denied the
officer a line-of-duty pension. However, Fedorski is distin-
guishable on its facts.
In Fedorski, the plaintiff, an evidence technician, was
riding as a passenger in an unmarked police car when it was
struck from behind at a red light. Fedorski, 375 Ill. App. 3d at
372, 873 N.E.2d at 16. The plaintiff was returning to the police
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station after assisting in a murder investigation and taking
photographs for a lineup. Fedorski, 375 Ill. App. 3d at 372, 873
N.E.2d at 16. He planned to contact the State's Attorney, enter
evidence, and complete a report once he returned to the station.
Fedorski, 375 Ill. App. 3d at 372, 873 N.E.2d at 16.
The appellate court determined the plaintiff was not
entitled to a line-of-duty disability because he was not acting
in a capacity that entailed any special risk when the injury
occurred. Fedorski, 375 Ill. App. 3d at 375, 873 N.E.2d at 19
(but also noting that the decision was consistent with White).
The plaintiff was not performing any activity relating to his
duties as an evidence technician that created a special risk not
ordinarily assumed by any automobile passenger. Fedorski, 375
Ill. App. 3d at 376, 873 N.E.2d at 20.
In contrast, Jones was performing an act of police duty
involving a special risk. See 40 ILCS 5/5-113 (West 2006)
(defining "act of duty"). Jones was driving a police transport
van on patrol intending to investigate an area that had reports
of speeders. Although Jones was not responding to a call, he was
conducting his patrol and an investigation, and he did face
special risks associated with being on patrol duty. See, e.g.,
Senese v. Village of Buffalo Grove, No. 2-07-1017, slip op. at 1-
2 (June 5, 2008), Ill. App. 3d , , 890 N.E.2d 628, 629
(2008) (although involving another issue, noting that the police
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officer received a line-of-duty pension after being injured when,
while monitoring traffic, his parked squad car was struck from
behind by another vehicle). Jones had to have his attention
directed toward being prepared to deal with any eventuality.
Applying the liberal construction of pension statutes in favor of
the pensioner, Jones is entitled to a line-of-duty pension.
III. CONCLUSION
For the reasons stated, we affirm the circuit court's
judgment reversing the Board.
Affirmed.
KNECHT and TURNER, JJ., concur.
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