NOT FOR PUBLICATION WITHOUT THE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