SHARLENE WHITE VS. ROWAN UNIVERSITY, SCHOOL OF OSTEOPATHIC MEDICIN(DC-2138-15, GLOUCESTER COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: March 21, 2017
• Docket: A-1054-15T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1054-15T1

SHARLENE WHITE,

Plaintiff-Appellant,

v.

ROWAN UNIVERSITY, SCHOOL OF OSTEOPATHIC MEDICINE,

Defendant-Respondent. ______________________________

Submitted February 27, 2017 – Decided March 21, 2017

Before Judges Nugent and Currier.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Gloucester County, Docket No. DC-2138-15.

Mets Schiro McGovern & Paris, LLP, attorneys for appellant (Matthew T. Clark, of counsel and on the brief).

Christopher S. Porrino, Attorney General, attorney for respondent (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; James M. Esposito, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Sharlene White appeals from the August 10, 2015

order dismissing her complaint with prejudice. After reviewing the record in light of the contentions advanced on appeal, we

affirm.

Appellant was employed at Rowan University School of

Osteopathic Medicine (Rowan) from 1993 to 2010. During that time,

she participated in the Public Employment Retirement System (PERS)

and was a member of the International Brotherhood of Teamsters,

Local No. 97. At all pertinent times, a collective bargaining

agreement was in effect between Local 97 and Rowan. The agreement

provided that, upon an employee's retirement, Rowan would pay the

employee for her unused sick time in an amount not to exceed

$15,000. The supplemental compensation on retirement (SCOR)

program was not available to employees who elected a deferred

retirement.

On May 4, 2010, Rowan notified appellant that she was being

laid off from her position. Instead of retiring, she elected to

remain on Rowan's employment recall list, making her eligible for

the possibility of future employment by any PERS participating

entity.

In June 2012, having not been recalled, appellant submitted

her application for a service retirement1 that was approved by

1 A service retirement is available to active PERS members aged sixty and older, and no minimum years of service are required.

2 A-1054-15T1 PERS. After retiring, she applied for SCOR benefits, which were

denied. Appellant was advised by the Division of Pensions and

Benefits that her retirement was considered deferred since "[she]

did not file for retirement until two years after [she] left

employment, even though [she] was eligible to file when [she] left

[Rowan] in June 2010."2

In 2013, appellant sought, and was granted, leave to file an

untimely Notice of Tort Claim under N.J.S.A. 59:13-6. She

thereafter filed a complaint and order to show cause for summary

disposition in Essex County Superior Court, alleging a breach of

contract in Rowan's failure to compensate her for her accrued

unused sick time.

On March 21, 2014, Judge Sebastian P. Lombardi considered

appellant's application and the supporting documents, and

determined that appellant had not exhausted her administrative

remedies; therefore, dismissal was appropriate as the court lacked

jurisdiction over the matter. The judge referred to the

regulations pertaining to SCOR, and relied on the provision that

directs an employee who wishes to contest an eligibility

determination to the Civil Service Commission (CSC). N.J.A.C.

2 A deferred retirement is available to PERS members who have not yet attained their pension fund's service retirement age but have established ten years or more of service credit.

3 A-1054-15T1 4A:6-3.4(d)(2); N.J.A.C. 4A:2-1.7(a)16 (identifying supplemental

compensation on retirement as an issue covered by the CSC appeals

process). Finding that the bargaining agreement clearly

delineated that the SCOR program was subject to the rules and

regulations of the CSC, making the CSC the forum in which to

present an appeal, the judge dismissed the complaint. An order

of June 13, 2014 memorialized the judge's ruling.

Despite the judge's reiteration in his decision that

appellant's application properly belonged before the CSC,

appellant did not pursue that recourse. She instead filed an

unfair labor practice charge against Rowan with the Public

Employment Relations Commission that was dismissed the following

month.

Six months later, in January 2015, appellant filed a complaint

in Gloucester County Superior Court, reasserting the claims

previously dismissed in the Essex County action. Rowan moved

under Rule 4:6-2(e) for a dismissal of the complaint for lack of

jurisdiction and failure to state a claim. The motion was

granted.3

Appellant argues on appeal that the trial court erroneously

dismissed her complaint and she repeats her substantive arguments.

3 The August 10, 2015 order was issued without a decision.

4 A-1054-15T1 We disagree. The dismissal of the complaint was not based on a

consideration of its merit; the claims were dismissed for a lack

of jurisdiction. The judges determined that appellant's remedy

lay with the CSC; the complaint was dismissed for appellant's

failure to exhaust her administrative remedies.

"Under the doctrine of primary jurisdiction, courts generally

decline to hear matters cognizable by an administrative agency."

Alexander's Dep't Stores of N.J., Inc. v. Borough of Paramus, 125

N.J. 100, 113 (1991); see also Bd. of Educ. v. Asbury Park Educ.

Ass'n, 155 N.J. Super. 76, 78 (App. Div. 1977) (although claim was

cognizable within trial court, the court should have transferred

claim as it was within the purview of an administrative agency).

It is well established that claimants must exhaust their

administrative remedies as it "allow[s] administrative bodies to

perform their statutory functions in an orderly manner without

preliminary interference from the courts." Brunetti v. Borough

of New Milford, 68 N.J. 576, 588 (1975) (citing Ward v. Keenan, 3

N.J. 298, 302 (1949)).

Here, appellant should have exhausted her administrative

remedies in the CSC prior to pursuing a claim in the courts. SCOR

benefits are governed by N.J.S.A. 11A:6-16 and -17. An appeal for

a denial of SCOR eligibility is with the CSC pursuant to N.J.A.C.

5 A-1054-15T1 4A:6-3.4(d)(2).4

In assuming "the facts as asserted by plaintiff are true[,]"

and giving appellant "the benefit of all inferences that may be

drawn[,]" Banco Popular N. Am. v. Gandi, 184 N.J. 161, 166 (2005)

(quoting Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192

(1988)), we are satisfied that the judges properly dismissed the

complaint for appellant's failure to pursue her claim before the

CSC.

Affirmed.

4 "If eligibility criteria have not been met, the request shall be disapproved and the employee shall be provided written notice of the reasons for disapproval and the right to appeal to the Civil Service Commission." (Emphasis added).

6 A-1054-15T1