FRANK GRILLO VS. STATE OF NEW JERSEY (L-0495-19, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1038-19
FRANK GRILLO, KELLY
GONZALEZ, DOUGLAS TUBBY,
POLICE BENEVOLENT
ASSOCIATION LOCAL 105,
APPROVED FOR PUBLICATION
Plaintiffs-Appellants,
August 31, 2021
v. APPELLATE DIVISION
STATE OF NEW JERSEY,
Defendant-Respondent.
____________________________
Submitted January 19, 2021-Decided April 1, 2021
Before Judges Messano, Hoffman and Smith.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Docket No. L-0495-19.
Alterman & Associates, LLC, attorneys for appellants
(Stuart J. Alterman and Timothy J. Prol, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Amy Chung, Deputy Attorney
General, on the brief).
The opinion of the court was delivered by
SMITH, J.S.C., (temporarily assigned)
Appellants Frank Grillo, Kelly Gonzalez, Douglas Tubby, and Police
Benevolent Association Local 105 (the PBA) appeal the dismissal with prejudice of
their complaint pursuant to R. 4:6-2(e). For the reasons stated below, we affirm.
I.
The State Health Benefits Program (SHBP) provides health benefits coverage
to employees of the State and other public employees whose employers participate
in the program. N.J.S.A. 52:14-17.25 to -17.46a. Appellants allege they should not
be compelled to contribute to the cost of their health benefits plan based on their
"base salary," as required under L. 2011, c. 78 (Chapter 78).
Prior to 1996, public employers paid the full premium costs of SHBP coverage
for their employees. Public employees did not contribute to these costs. In 2011,
through Chapter 78, the Legislature mandated "sweeping pension and health benefit
changes" for public employees, including a requirement that they "contribute from
three to thirty-five percent of their health care premium costs, rising with salary." In
re New Brunswick Mun. Emps. Ass'n, 453 N.J. Super. 408, 416 (App. Div. 2018).
On March 12, 2019, Grillo, Gonzalez, Tubby, municipal police officers in the
City of Trenton, and the PBA filed a complaint against the State1 for a judgment
declaring that Chapter 78 contributions should be based not on salary, but "on the
1
Municipal police officers Grillo, Gonzalez, and Tubby did not sue their public
employer, the City of Trenton.
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rate of Temporary Disability Benefits being paid." According to their complaint,
Grillo, Gonzalez, and Tubby were injured at work and now receive temporary
disability benefits2 through workers' compensation. They allege they make premium
contributions for health benefits under Chapter 78 based on their "current salary" or
their "wages, not [their] earnings while [they are] receiving Temporary Disability
Benefits." Appellants further allege their SHBP contributions while injured are
"much higher than" they would be if their contributions were based on their
temporary disability benefits. The PBA makes similar allegations.
The State moved pursuant to Rule 4:6-2(e) to dismiss the complaint with
prejudice based on the plain language of Chapter 78. In addition to opposing the
State's motion, appellants sought leave to amend the declaratory judgment complaint
to secure alternate relief, declaring that recipients of temporary disability benefits
are "not responsible for remitting [any] Chapter 78 contributions for health benefits
under N.J.S.A. 52:14-17.28c."
The trial court granted the State’s motion to dismiss with prejudice and denied
leave to amend the complaint. Appellants raise the following arguments before us:
Point I: The Superior Court Erred as a Matter
of Law in Granting the State's Motion to
2
"The purpose of temporary disability benefits is to provide an individual who
suffers a work-related injury with a 'partial substitute for loss of current wages.'"
Cunningham v. Atl. States Cast Iron Pipe Co., 386 N.J. Super. 423, 428 (App. Div.
2006) (quoting Ort v. Taylor-Wharton Co., 47 N.J. 198, 208 (1966)).
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Dismiss Since Appellants Stated a Claim
Upon Which Relief Can Be Granted.
Point II: The Superior Court Erred as a
Matter of Law in Failing to Grant Appellants
Leave to Amend Their Complaint.
Point III: N.J.S.A. 52:14-17.28c Is Void for
Vagueness as Applied to Workers
Compensation Temporary Disability
Benefits. (Not Raised Below)
II.
We review a dismissal for failure to state a claim pursuant to Rule 4:6-2(e) de
novo, following the same standard as the trial court. Castello v. Wohler, 446 N.J.
Super. 1, 14 (App. Div. 2016). In this context, we accept as true the complaint's
factual assertions. Banco Popular N. Am. v. Gandi, 184 N.J. 161, 165–66, 183–84
(2005). "The court may not consider anything other than whether the complaint
states a cognizable cause of action." Rieder v. State, 221 N.J. Super. 547, 552 (App.
Div. 1987). "It is the existence of the fundament of a cause of action in those
documents that is pivotal; the ability of the plaintiff to prove its allegations is not at
issue." Banco Popular N. Am., 184 N.J. at 183 (citing Printing Mart-Morristown v.
Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)).
Under Rule 4:6-2(e), a motion to dismiss for failure to state a claim must be
denied if, giving plaintiff the benefit of all the allegations asserted in the pleadings
and all favorable inferences, a claim has been established. "At this preliminary stage
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of the litigation the Court is not concerned with the ability of [appellants] to prove
the allegation contained in the complaint." Printing Mart-Morristown, 116 N.J. at746 (citing Somers Constr. Co. v. Bd. of Educ., 198 F. Supp. 732, 734 (D.N.J.
1961)).
"[T]he test for determining the adequacy of a pleading [is] whether a cause of
action is 'suggested' by the facts." Ibid. (quoting Velantzas v. Colgate-Palmolive
Co., 109 N.J. 189, 192 (1988)). "When a motion challenging the legal sufficiency
of a complaint is filed, plaintiff is entitled to a liberal interpretation and given the
benefit of all favorable inferences that reasonably may be drawn." State ex rel.
McCormac v. Qwest Commc'ns Int'l, Inc., 387 N.J. Super. 469, 478 (App. Div. 2006)
(citing Stubaus v. Whitman, 339 N.J. Super. 38, 52 (App. Div. 2001)). Under that
standard, motions to dismiss "should be granted in only the rarest of instances."
Printing Mart-Morristown, 116 N.J. at 772.
We review matters of statutory interpretation de novo. Verry v. Franklin Fire
Dist. No. 1, 230 N.J. 285, 294 (2017). Our ultimate "task in statutory interpretation
is to determine and effectuate the Legislature's intent." Bosland v. Warnock Dodge,
Inc., 197 N.J. 543, 553 (2009). Courts "look first to the plain language of the statute,
seeking further guidance only to the extent that the Legislature's intent cannot be
derived from the words that it has chosen." McGovern v. Rutgers, 211 N.J. 94, 108
(2012) (quoting Bosland, 197 N.J. at 553). "The Legislature's intent is the paramount
A-1038-19
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goal when interpreting a statute and, generally, the best indicator of that intent is the
statutory language." DiProspero v. Penn, 183 N.J. 477, 492 (2005) (citing Frugis v.
Bracigliano, 177 N.J. 250, 282 (2003)). Thus, any analysis to determine legislative
intent begins with the statute's plain language. Ibid. at 493. Our authority is bound
by clearly defined statutory terms. See Febbi v. Bd. of Rev., 35 N.J. 601, 606 (1961).
Where a specific definition is absent, "[w]e must presume that the Legislature
intended the words that it chose and the plain and ordinary meaning ascribed to those
words." Paff v. Galloway Twp., 229 N.J. 340, 353 (2017) (citing DiProspero, 183
N.J. at 492).
However, our review "is not limited to the words in a challenged provision."
State v. Twiggs, 233 N.J. 513, 532 (2018). A court "'can also draw inferences based
on the statute's overall structure and composition,' and may consider 'the entire
legislative scheme of which [the statute] is a part.'" Ibid. (alteration in original)
(citations omitted). "We do not view [statutory] words and phrases in isolation but
rather in their proper context and in relationship to other parts of [the] statute, so that
meaning can be given to the whole of [the] enactment." Id. at 533 (alterations in
original) (quoting State v. Rangel, 213 N.J. 500, 509 (2013)).
Furthermore, "[t]he Legislature is presumed to be familiar with its own
enactments, with judicial declarations relating to them, and to have passed or
preserved cognate laws with the intention that they be construed to serve a useful
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and consistent purpose." State v. Federanko, 26 N.J. 119, 129 (1958) (citing In re
N.Y. State Realty & Terminal Co., 21 N.J. 90 (1956)).
"We review a trial court's decision to grant or deny a motion to amend the
complaint for abuse of discretion." Port Liberte II Condo. Ass'n, Inc. v. New Liberty
Residential Urb. Renewal Co., 435 N.J. Super. 51, 62 (App. Div. 2014) (citing
Kernan v. One Wash. Park Urb. Renewal Assocs., 154 N.J. 437, 457 (1998)). "'Rule
4:9-1 requires that motions for leave to amend be granted liberally' and that 'the
granting of a motion to file an amended complaint always rests in the court's sound
discretion.'" Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006) (quoting
Kernan, 154 N.J. at 456–57). In exercising that discretion, a court must go through
"a two-step process: whether the non-moving party will be prejudiced, and whether
granting the amendment would nonetheless be futile." Ibid. The court determines
whether the proposed amendment would be futile by asking "whether the amended
claim will nonetheless fail and, hence, allowing the amendment would be a useless
endeavor." Ibid. at 501.
III.
Appellants seek declaratory relief permitting temporary disability benefits to
substitute for the SHBP's "base salary." Merriam-Webster's Dictionary defines
"salary" as "fixed compensation paid regularly for services." Merriam-Webster's
Dictionary 1097 (11th ed. 2014). The term "base salary," in the context of these
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facts, comes from N.J.S.A. 52:14-17.28c. This statutory section establishes the
"amount of contribution to be paid pursuant to the provisions of sections 40, 41, and
42 of [L. 2011, c. 78] . . . by public employees of the State . . . ." N.J.S.A. 52:14-
17.28c. Its language directing a public employee's health plan premium cost
contribution is very specific. "[A]n employee who earns [a designated dollar
amount] shall pay [a corresponding percentage] of the cost of [health care benefits]
coverage." N.J.S.A. 52:14-17.28c. This sentence is repeated forty-eight times in
section 17.28c, with eighteen public employee earning tiers corresponding to
specific percentages of premium contribution for family health plan coverage,
fifteen public employee earning tiers corresponding to specific percentages of
premium contribution for individual health plan coverage, and finally, fifteen public
employee earning tiers corresponding to specific percentages of premium
contribution for "[health care plan] members with child or spouse coverage or its
equivalent." Ibid. Immediately following these forty-eight repetitive, carefully
calibrated entries, section 17.28c expressly states that "[b]ase salary shall be used to
determine what an employee earns for the purposes of this provision" and therefore
must contribute. Ibid.We have considered the definition of "base salary" under slightly different
facts. Paterson Police PBA Loc. 1 v. City of Paterson, 433 N.J. Super. 416 (App.
Div. 2013). In Paterson Police PBA, the issue arose from a compulsory interest
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arbitration between the police unions and the city. See id. at 423. The arbitrator's
award referenced a percentage of police officers' base salary they were statutorily
required3 to contribute toward the costs of their health benefit premiums. Base salary
was not defined in the arbitrator's award or the statute. Id. at 419. No guidance was
available in the corresponding administrative regulations. Id. at 421. The dispute
before the court was whether the "base salary" from which health plan premium
contributions were to be paid would be "base contractual salary" or "base
pensionable salary." Id. at 424.
In Paterson Police PBA, we followed our principles of statutory construction.
After considering definitions of the term, salary, we turned to "extrinsic evidence
3
"The law at issue here, which provided changes to the health benefits program,
was introduced as S. 3, enacted as L. 2010, c. 2, and codified as amended at
N.J.S.A. 40A:10-21." Paterson Police PBA, 433 N.J. Super. at 420. The
relevant statutory section in Paterson Police PBA is set forth here:
Commencing on the effective date [May 21, 2010] of
L. 2010, c. 2 and upon the expiration of any applicable
binding collective negotiations agreement in force on
that effective date, employees of an employer shall pay
1.5% of base salary, through the withholding of the
contribution from the pay, salary or other
compensation, for health care benefits coverage
provided pursuant to N.J.S.[A.] 40A:10-17,
notwithstanding any other amount that may be required
additionally pursuant to subsection a. of this section for
such coverage.
[N.J.S.A. 40A:10-21(b).]
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from which . . . to glean the Legislature's intent." Id. at 426 (quoting Klumb v. Bd.
of Educ., 199 N.J. 14, 24 (2009)). After examining collective bargaining legislation4
as well as relevant agency compliance guidelines, we held that the legislature
intended base salary to mean base pensionable salary under N.J.S.A. 34:13A-
16.7(a). Id. at 430
Appellants would have us declare their temporary disability benefits "base
salary" under the SHBP premium cost contribution statute, section 17.28c. We
decline to do so. The facts of this case are less nuanced than in Paterson Police PBA,
which distinguished between competing versions of police officers' annual
collectively bargained salary. There is no basis in our principles of statutory
construction to substitute temporary disability benefits, a temporary payment to
employees arising from work-related injury status, for collectively bargained salary,
pensionable or not. There is no need to reach outside of the SHBP statutory scheme
to discern the legislature's intent. When the plain meaning of base salary is read
together with section 17.28c's detailed and repetitive nexus between employee
earnings and cost contribution, along with our holding in Paterson Police PBA, we
find nothing in plaintiffs' complaint which sustains a cause of action. We presume
"[t]he Legislature is familiar with its own enactments, with judicial declarations
4
Police and Fire Public Interest Arbitration Reform Act, N.J.S.A. 34:13A-14
to -19.
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relating to them, and to have passed or preserved cognate laws with the intention
that they be construed to serve a useful and consistent purpose." Twiggs, 233 N.J.
at 532. This matter warrants the "rare" dismissal with prejudice under Rule 4:6-2(e).
See Printing Mart-Morristown, 116 N.J. at 772.
Appellants next contend the trial court's denial of the motion to amend the
complaint was an abuse of discretion. In their proposed amendment, appellants aver
temporary disability benefits are not salary at all, and therefore they have no
obligation under section 17.28c to contribute to their SHBP premium cost while they
receive such temporary benefits. The trial court concluded that granting the
amendment would be futile. We concur and note the Legislature may have
anticipated this argument. N.J.S.A. 52:14-17.28d(a) reads in pertinent part:
Notwithstanding the provisions of any other law to the
contrary, public employees of the State and employers
other than the State shall contribute, through the
withholding of the contribution from the pay, salary, or
other compensation, toward the cost of health care benefits
coverage for the employee and any dependent provided
under the State Health Benefits Program in an amount that
shall be determined in accordance with [N.J.S.A. 52:14-
17.28c] . . . .
Under N.J.S.A. 52:14-17.28d, employees are required to contribute toward
the cost of their SHBP in an amount determined by section 17.28c. Such
contribution will be withheld from "pay, salary, or other compensation." N.J.S.A.
52:14-17.28d(a) (emphasis added). Temporary disability benefits are "other
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compensation," compensation from which SHBP premium cost contributions are
deducted. The unambiguous language of N.J.S.A. 52:14-17.28d renders the
potential cause of action in the proposed amendment futile. The trial court did not
abuse its discretion in denying appellants' motion to amend.
Finally, appellants argue for the first time on appeal that N.J.S.A. 52:14-
17.28c is void for vagueness. They suggest the definition of "base salary" in the
statute is unclear as it applies to them. We will not consider issues "not properly
presented to the trial court when an opportunity for such a presentation is available
'unless the questions so raised on appeal go to the jurisdiction of the trial court or
concern matters of great public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J.
229, 234 (1973) (quoting Reynolds Offset Co. v. Summer, 58 N.J. Super. 542, 548
(App. Div. 1959)). Any arguments not addressed here are without sufficient merit
to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing
1-t~
is a true cop y of the original on
file inmy office.
CLERK OF TI-I E A ~ TE DIVISION
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