THERESA TRIOLA VS. BOARD OF TRUSTEES, ETC. (PUBLIC EMPLOYEES' RETIREMENT SYSTEM)

CourtNew Jersey Superior Court Appellate Division
DecidedOctober 26, 2021
DocketA-1784-18
StatusUnpublished

This text of THERESA TRIOLA VS. BOARD OF TRUSTEES, ETC. (PUBLIC EMPLOYEES' RETIREMENT SYSTEM) (THERESA TRIOLA VS. BOARD OF TRUSTEES, ETC. (PUBLIC EMPLOYEES' RETIREMENT SYSTEM)) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
THERESA TRIOLA VS. BOARD OF TRUSTEES, ETC. (PUBLIC EMPLOYEES' RETIREMENT SYSTEM), (N.J. Ct. App. 2021).

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1784-18

THERESA TRIOLA,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM,

Respondent-Respondent. __________________________

Submitted October 14, 2021 – Decided October 26, 2021

Before Judges Hoffman and Geiger.

On appeal from the Board of Trustees of the Public Employees' Retirement System, Department of the Treasury, PERS No. xxxx700.

Castellani Law Firm, LLC, attorney for appellant (David R. Castellani, on the brief).

Andrew J. Bruck, Acting Attorney General, attorney for respondent (Sookie Bae-Park, Assistant Attorney General, of counsel; Jeffrey Padgett, Deputy Attorney General, on the brief). PER CURIAM

Appellant Theresa Triola challenges final administrative determinations

of the Board of Trustees (Board) of the Public Employees' Retirement System

(PERS) without a hearing in the Office of Administrative Law (OAL), that her

PERS account expired on September 30, 2015, because two years had elapsed

since her last pension contribution on June 30, 2015, 1 and denying her request

for a ten-year extension of her PERS account until 2025. We affirm.

The underlying facts are largely undisputed. Triola initially enrolled in

PERS on September 1, 2005, when she commenced public employment as an

adjunct professor at Gloucester Community College (GCC). On November

2007, Triola began concurrent public employment as an Assistant Supervisor of

Education for the Department of Children and Families (DCF), thereby

establishing multiple PERS enrollments under a single PERS account pursuant

to N.J.A.C. 17:2-2.2(a).

Meanwhile, on December 30, 2011, Triola applied for accidental

disability retirement benefits with a retirement date of January 11, 2012. While

her disability retirement application was pending and she was on Workers'

1 As a ten-month school-year member, Triola received credit for July and August 2015, pursuant to N.J.A.C. 17:2-4.3(a). A-1784-18 2 Compensation medical leave, Triola's position with DCF was discontinued and

eliminated on June 18, 2010.

The Board denied Triola's application for disability retirement benefits,

finding that she was not "totally and permanently disabled for the performance

of [her] regular and assigned duties." Triola appealed and the matter was

transferred to the OAL for hearing as a contested case. The Administrative Law

Judge (ALJ) issued an initial decision in Triola's favor, but the Pension Board

rejected the ALJ's initial decision and denied the appeal. Triola appealed to this

court and we upheld the Board's determination. Triola v. Bd. of Trs. Pub. Emps.'

Ret. Sys., No. A-0646-14 (App. Div. March 16, 2016) (slip op. at 13). The

Supreme Court granted certification, but later dismissed the petition as

improvidently granted. Triola v. Bd. of Trs., Pub. Emps.' Ret. Sys., 228 N.J.

463 (2017).

On September 8, 2014, while appellant's accidental disability retirement

application was pending, she wrote to the Division to request her account remain

active pending the outcome of her disability pension appeal. She recognized

that the "rules have changed" since she joined the pension system and requested

to be "grandfathered" in.

A-1784-18 3 Triola's employment at GCC continued, with corresponding contributions

to her PERS account, until June 30, 2013, when GCC did not renew her contract

as an adjunct professor. On September 8, 2015, Triola was advised that her last

contribution was June 30, 2013, and her PERS account was closed because two

years had passed since her last contribution. Since she had more than ten years

of PERS service credit, Triola was told that she could apply for a deferred

retirement benefit.

On September 23, 2015, Triola contacted the Division of Pensions and

Benefits (Division) and was incorrectly advised by the Assistant Director and

other Division employees that her PERS account would remain open and active

until 2025. However, on March 23, 2016, the Division informed her that her

PERS account was no longer active. She went to the Division the next day and

was told that her account had expired on September 30, 2015, pursuant to

N.J.S.A. 43:15A-7(e) because her last contribution had occurred more than two

years earlier and she had been a ten-month employee.

Triola wrote to the Division requesting a ten-year extension of her PERS

membership until 2025. On May 6, 2016, the Division responded confirming

that her PERS account expired on September 30, 2015. The letter acknowledged

that Triola wished to keep the account open to "purchase service credit." It noted

A-1784-18 4 that on May 28, 2014, Triola requested to purchase temporary/substitute service

credit, and that request was closed in January 2015. Under N.J.A.C. 17:2-5.1,

"[o]nly active members of the System shall be eligible to make application for

purchase of credit" and because her membership expired on September 30, 2015,

Triola was ineligible to submit a request. Because she had ten years of service

credit at the time her membership ended, Triola was told her account "vested"

and she was eligible for deferred retirement starting at age sixty. She was also

advised that she could file an appeal to the Board.

Triola subsequently requested a ten-year extension of her account until

2025 under N.J.S.A. 43:15A-8(a). The Board denied Triola's request. It

determined that her "termination from [GCC] was not a discontinuance of

employment that would qualify [her] for the [ten] year exception under N.J.S.A.

43:15A-8."

Triola appealed the Board's decision. Though the Board found her non-

renewal from GCC did not qualify as a discontinuance of employment under

N.J.S.A. 43:15A-8(a), Triola contended the statute permits an employee to

continue in PERS if the discontinuance was "without personal fault." She

alleged that she was discontinued from GCC without personal fault and

requested a hearing before the OAL. On September 19, 2018, the Board

A-1784-18 5 determined there were no material facts in dispute and denied appellant's request

for an OAL hearing.

On November 15, 2018, the Board issued a Final Administration

Determination denying Triola's appeal, finding that her account expired on

September 30, 2015, and she did not qualify for a ten-year extension of her

account under N.J.S.A. 43:15A-8(a). The Board explained that "[t]he Division's

long-standing interpretation" of N.J.S.A. 43:15A-7(e) and N.J.S.A. 43:15A-8(a)

was that the ten-year extension under N.J.S.A. 43:15A-8(a) was only available

"to employees who have been terminated through either a Reduction in Force or

where the member's position has been eliminated." In contrast, "[t]he nature of

an adjunct faculty's employment is on a semester-by-semester basis."

This appeal followed. Triola raises the following points:

I. THE [BOARD] WAS ARBITRARY, CAPRICIOUS AND UNREASONABLE AND DENIED . . .

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THERESA TRIOLA VS. BOARD OF TRUSTEES, ETC. (PUBLIC EMPLOYEES' RETIREMENT SYSTEM), Counsel Stack Legal Research, https://law.counselstack.com/opinion/theresa-triola-vs-board-of-trustees-etc-public-employees-retirement-njsuperctappdiv-2021.