NOT FOR PUBLICATION WITHOUT THE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-1038-19
FRANK GRILLO, KELLY
GONZALEZ, DOUGLAS TUBBY,
and POLICE BENEVOLENT
ASSOCIATION LOCAL 105,
Plaintiffs-Appellants,
v.
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).
PER CURIAM
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 -17.46(a). 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).
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2
On March 12, 2019, Grillo, Gonzalez, Tubby, municipal police officers in
the City of Trenton, and the PBA filed a complaint against the State 1 for a
judgment declaring that Chapter 78 contributions should be based not on salary,
but "on the rate of Temporary Disability Benefits being paid." According to
their complaint, Grillo, Gonzalez, and Tubby were injured at work and now
receive temporary disability benefits 2 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
1
Grillo, Gonzalez, and Tubby, municipal police officers, did not sue their public
employer, the City of Trenton.
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)).
A-1038-19
3
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 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
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4
whether the complaint states a cognizable cause of action." Rieder v. State, 221
N.J. Super. 547, 552 (App. Div. 1987) (citing P. & J. Auto Body v. Miller, 72
N.J. Super. 207, 211 (App. Div. 1962)). "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 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. at 746 (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."
A-1038-19
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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 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. Our authority is bound by clearly defined
statutory terms. Febbi v. Bd. of Review, 35 N.J. 601, 606 (1961). Where a
specific definition is absent, "[w]e must presume that the Legislature intended
the words it chose and the plain and ordinary meaning ascribed to those words."
A-1038-19
6
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
and consistent purpose." State v. Federanko, 26 N.J. 119, 129 (1958) (citing
Appeal of N.Y. State Realty & Terminal Co., 21 N.J. 90 (1956)).
"We review motions to amend [a complaint] under an abuse of discretion
standard." 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
A-1038-19
7
Wash. Park Urb. Renewal Assocs., 154 N.J. 437, 457 (1998)); Leitner v. Toms
River Reg'l Sch., 392 N.J. Super. 80, 87 (App. Div. 2007). "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. Merchants Mut. Ins. Co., 185 N.J. 490, 500–01 (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."
Id. at 501. 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." Id. at 501–02.
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." Salary,
Merriam-Webster Dictionary (10th ed. 1993). The term "base salary," in the
context of these 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."
A-1038-19
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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
arbitration between the police unions and the city. The arbitrator's award
referenced a percentage of police officers' base salary they were statutorily
A-1038-19
9
required3 to contribute toward the costs of their health benefit premiums. Base
salary was not defined in the arbitrator's award or the statute. No guidance was
available in the corresponding administrative regulations. 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 from which to glean the Legislature's intent." Id. at 426
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).]
A-1038-19
10
(citing 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-16.7a.
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
4
Police and Fire Public Interest Arbitration Reform Act, N.J.S.A. 34:13A-14
to -19
A-1038-19
11
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
and consistent purpose." Twiggs, 233 N.J. at 532.
This matter warrants the "rare" dismissal with prejudice under Rule 4:6-
2(e). 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) . . . .
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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 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).
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Affirmed.
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