CHRISTINE MINSAVAGE FOR DAVID MINSAVAGE VS. TEACHERS' PENSION AND ANNUITY FUND (TEACHERS' PENSION AND ANNUITY FUND) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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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-1535-16T3
CHRISTINE MINSAVAGE for
DAVID MINSAVAGE (deceased),
Petitioner-Appellant,
v.
BOARD OF TRUSTEES, TEACHERS'
PENSION AND ANNUITY FUND,
Respondent-Respondent.
________________________________
Argued May 30, 2018 – Decided June 15, 2018
Before Judges Hoffman and Mayer.
On appeal from the Board of Trustees of the
Teachers' Pension and Annuity Fund, Department
of Treasury, TPAF No. 1-421704.
Daniel J. Zirrith argued the cause for
appellant (Law Offices of Daniel J. Zirrith,
LLC, attorneys; Daniel J. Zirrith, of counsel
and on the briefs; Jeffrey J. Berezny, on the
briefs).
Jeff S. Ignatowitz, Deputy Attorney General,
argued the cause for respondent (Gurbir S.
Grewal, Attorney General, attorney; Melissa H.
Raksa, Assistant Attorney General, of counsel;
Jeff S. Ignatowitz, Deputy Attorney General,
on the brief).
PER CURIAM
Appellant Christine Minsavage sought to change the retirement
option her deceased husband chose so she could receive survivor
retirement benefits rather than reimbursement of her husband's
pension contributions. Appellant now appeals from the November
4, 2016 final decision of respondent, the Board of Trustees of the
Teachers' Pension and Annuity Fund (Board), denying her request
to change the retirement option her husband selected. We affirm.
I
David Minsavage (decedent) worked for nearly twenty-five
years at Hanover Park High School (school), beginning in 1990. In
August 2014, decedent was diagnosed with terminal pancreatic
cancer.
In September 2014, decedent contacted the Division of
Pensions and Benefits (Division) for assistance in setting up his
member benefits online system (MBOS) account. Around October
2014, decedent contacted the New Jersey Education Association
(NJEA) to discuss his retirement options. Appellant certifies she
and decedent notified NJEA of decedent's terminal cancer diagnosis
at that time. According to appellant, the NJEA representative
provided decedent with screen shots of a sample MBOS retirement
application and instructed decedent on the options he should choose
by highlighting selections on the sample application; decedent
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followed the NJEA representative's directions, and "on or about
November 17, 2014," filed an application for early retirement.1
Decedent continued working at the school until mid-December
2014. On March 16, 2015, the school filed a certification of
services and final salary retirement form, which indicated
decedent would retire on July 1, 2015 — the date he would attain
eligibility for early retirement, which requires twenty-five years
of service.
On April 9, 2015, decedent passed away after twenty-four
years and ten months of service. Appellant notified the Division
of her husband's passing the following day. On April 15, 2015,
the school certified to the Division that decedent's last day of
active service was April 8, 2015; thus, decedent passed away less
than three months before attaining eligibility for early
retirement.
On April 22, 2015, the Division wrote appellant notifying her
of her entitled benefits, which included return of pension
contributions and a Group Life Insurance Benefit. Appellant
1
Unaware decedent had previously filed his own application, in
April 2015, appellant accessed decedent's MBOS account and filed
a retirement application on his behalf. According to appellant's
certification, she also relied upon an NJEA representative's
instructions in selecting the early retirement option. She further
certified no one advised either her or decedent about filing for
ordinary disability.
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contacted the Division in April and May inquiring into the letter's
meaning and her benefit eligibility. Eventually, she learned she
was only entitled to reimbursement of decedent's contributions
rather than survivor retirement benefits because decedent did not
survive long enough to attain twenty-five years of service.
Appellant wrote the Division and requested permission to
change decedent's retirement application from early retirement to
ordinary disability retirement. In her correspondence, she
stated, "Had we known how sick my husband really was and how
quickly the cancer would cause his death[,] we would have filed
for a retirement benefit with a disability status." In response,
the Division confirmed its determination that appellant was not
entitled to survivor retirement benefits because decedent did not
attain twenty-five years of service.
Subsequently, with the assistance of counsel, appellant filed
an appeal with the Board. In her appeal, she requested to "reopen,
amend, modify, and/or change retroactively" decedent's retirement
application, based on the following arguments: (1) decedent
"lacked sufficient information to make an informed choice among
his retirement options"; (2) decedent "was incapacitated by a
combination of physical, psychological and emotional burdens that
reasonably prevented him from making an informed decision"; (3)
"there was a mutual mistake in his retirement selection based upon
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the lack of information and the detrimental reliance on the
specific instructions which did not conform to [decedent's] true
intent, which was to maximize benefits for his wife and children";
(4) "the Board should exercise its discretionary authority to
avoid an inequitable outcome affecting a retiree's innocent spouse
and family"; and (5) appellant "acted with reasonable diligence
in every step of the way in [decedent's] retirement situation
before and after his death."
The Board denied appellant's request, finding "no evidence
in the record that [decedent] relied upon any advice given to him
by the Division to his detriment," and denied culpability for the
allegedly poor advice the NJEA provided. The Board also noted
decedent failed to attain twenty-five years of service, as required
by N.J.S.A. 18A:66-113.1. Finally, it noted the Division was
unaware of decedent's terminal illness at the time he submitted
his retirement application, but stated decedent "could have
availed himself to the Fact Sheets[,] which provide information
regarding the different retirement types available and the
eligibility criteria required for each selection or seek guidance
from the Division."
Appellant appealed the Board's findings, repeating her prior
arguments and further contending there existed good cause to alter
the application. The Board denied her appeal and issued the final
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administrative determination under review. In its determination,
the Board found "the statutes and regulations governing the
[Teachers' Pension and Annuity Fund] do not permit the Board to
grant [appellant's] request to change her husband's retirement
type from [e]arly to [o]rdinary [d]isability retirement." It
further found, "there was no evidence in the record that [decedent]
relied upon any advice given to him by the Division to his
detriment. In fact, you advised that [decedent] sought the advice
and assistance of the NJEA, who actually filed his retirement
application on his behalf."
It also repeated its prior reasoning, finding:
The Board cannot comment on any advice that
was provided to [decedent] by the [NJEA]. The
Division was unaware that [decedent] had
serious health problems when he filed his
application for retirement. However, the
Board disagrees with your assertion the
Division failed to provide him with sufficient
information upon which he could have made an
informed decision. Also, he could have
availed himself to the Fact Sheets which
provide information regarding the different
retirement types available and the eligibility
criteria required for each selection or seek
guidance from the Division.
Finally, the Board again confirmed that decedent did not complete
twenty-five years of service, rendering him ineligible for early
retirement under N.J.S.A. 18A:66-113.1. Accordingly, it held it
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was "without authority" to change decedent's retirement type from
early retirement to ordinary disability. This appeal followed.
II
On appeal, appellant argues she demonstrated good cause for
the Board to allow her to modify her husband's retirement
application. She further argues that, at the time decedent
completed his application, he lacked capacity due to severe stress
associated with his terminal diagnosis. Finally, appellant argues
the Board's alleged failure to follow the requirements of N.J.A.C.
17:3-6.3 invalidates her husband's retirement benefits selection,
thereby allowing her to change the retirement application, and
choose ordinary disability benefits.
Our review of an administrative agency's decision is limited.
In re Herrmann, 192 N.J. 19, 28 (2007). A reviewing court may
reverse only those administrative decisions that are arbitrary,
capricious, unreasonable, or violative of expressed or implicit
legislative policies. In re Musick, 143 N.J. 206, 216 (1996);
Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).
Unfortunately for appellant, the Board's decision in the instant
matter is neither arbitrary nor violative of any legislative
policy.
N.J.S.A. 18A:66-113.1 — early retirement — provides in
pertinent part:
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Should a member resign after having
established [twenty-five] years of creditable
service before reaching age [sixty], he [or
she] may elect 'early retirement,' provided
that such election is communicated by such
member to the retirement system by filing a
written application, duly attested, stating at
what time subsequent to the execution and
filing thereof he [or she] desires to be
retired.
N.J.S.A. 18A:66-41 — ordinary disability allowances — provides:
A member upon retirement for ordinary
disability shall receive a retirement
allowance which shall consist of:
(a) an annuity which shall be the actuarial
equivalent of his accumulated deductions at
the time of his retirement together with
regular interest after January 1, 1956; and
(b) a pension in the amount which, when added
to the member's annuity, will provide a total
retirement allowance of 1.64 [percent] of
final compensation multiplied by his [or her]
number of years of creditable service; and
provided further, that in no event shall the
allowance be less than 43.6 [percent] of final
compensation.
Upon the receipt of proper proofs of the death
of a member who has retired on an ordinary
disability retirement allowance, there shall
be paid to such member's beneficiary, an
amount equal to [one-and-one-half] times the
compensation upon which contributions by the
member to the annuity savings fund were based
in the last year of creditable service or in
the year of the member's highest contractual
salary, whichever is higher . . . .
We first reject appellant's claim that decedent's illness
incapacitated him by the time he completed his retirement
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application. The record lacks support for this claim. Appellant
conceded both she and decedent failed to appreciate the progression
of her husband's illness when he completed the application. At
that time, early retirement represented the most sensible option
because it provided greater benefits both before and after
decedent's scheduled retirement. Although we are sympathetic to
appellant's loss, we cannot rely on her hindsight to permit her
to alter or amend decedent's retirement application. Moreover,
appellant's evidence supporting her incapacitation argument — a
doctor's letter stating terminal illness causes mental and
emotional distress — fell short of establishing incapacitation.
Additionally, we are not persuaded by appellant's arguments
regarding the Board's alleged failure to follow N.J.A.C. 17:3-
6.3(a), which states "a member shall have the right to withdraw,
cancel, or change an application for retirement at any time before
the member's retirement allowance becomes due and payable . . . ."
The plain language of N.J.A.C. 17:3-6.3 indicates it only applies
to a retirement application the Board has already approved. Here,
decedent was ineligible for early retirement at the time he passed
away; therefore, the Division never approved his application.
Moreover, appellant cites inapposite case law to support her
assertion.
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We conclude the record lacks evidence the Division knew of
decedent's medical condition or that the Division provided
decedent with any advice upon which he relied; instead, if decedent
relied upon any representations, the record indicates they came
from the NJEA. Unfortunately, decedent passed away before
attaining twenty-five years of service. Thus, the Board did not
act arbitrarily or contrary to legislative intent in denying
appellant the ability to amend or modify decedent's retirement
application.
Affirmed.
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