NOT FOR PUBLICATION WITHOUT THE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 . . .
TRIOL[A] DUE PROCESS IN FAILING TO REFER
[HER] PENSION APPEAL TO THE [OAL] FOR A
HEARING ON THE DISPUTED AND
CONTROVERTED FACTS RELATING TO THE
CESSATION OF HER EMPLOYMENT WITH [GCC]
AND THE PERS ELIGIBILITY FOR THE POSITION
PETITIONER MAINTAINED WITH [GCC] AS AN
ADJUNCT PROFESSOR.
II. THE [BOARD] WAS ARBITRARY, CAPRICIOUS
AND UNREASONABLE IN REFUSING TO
RECOGNIZE [TRIOLA], AN ADJUNCT
A-1784-18
6
PROFESSOR, AS ONE OF THE CLASS OF PERS
EMPLOYEES ENTITLED TO THE BENEFIT OF
THE [TEN-]YEAR EXTENSION TO REOPEN A
PENSION ACCOUNT UNDER N.J.S.A.43:15A-8(a).
III. THE [BOARD] SHOULD BE EQUITABLY
ESTOPPED FROM DENYING [TRIOLA] THE
RIGHT TO REOPEN HER PENSION ACCOUNT
UNDER THE [TEN-]YEAR EXTENSION
PROVISION 8(a), GIVEN THE FACT THAT
[TRIOLA] REQUESTED THAT HER ACCOUNT
REMAIN ACTIVE AND OPEN DURING HER
DISABILITY PENSION APPEAL PROCESS AND IN
2014 WITHIN [TWO] YEARS OF THE LAST
CONTRIBUTION AND IT WAS REPRESENTED BY
NUMEROUS EMPLOYEES OF THE DIVISION OF
PENSIONS, INCLUDING THE ASSISTANT
DIRECTOR, THAT HER PENSION ACCOUNT
WOULD REMAIN OPEN UNTIL 2025.
Our scope of an administrative agency's final determination is limited. In
re Carter, 191 N.J. 474, 482 (2007). We accord a "strong presumption of
reasonableness" to the agency's exercise of its statutorily delegated
responsibilities. City of Newark v. Nat. Res. Council, 82 N.J. 530, 539 (1980).
Further, "[i]t is settled that '[a]n administrative agency's interpretation of statutes
and regulations within its implementing and enforcing responsibility is
ordinarily entitled to our deference.'" Wnuck v. N.J. Div. of Motor Vehicles,
337 N.J. Super. 52, 56 (App. Div. 2001) (second alteration in original) (quoting
In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div.
1997)). Absent arbitrary, unreasonable, or capricious action, or a lack of support
A-1784-18
7
in the record, the agency's final decision will be sustained. In re Herrmann, 192
N.J. 19, 27-28 (2007). The burden of showing the agency's action was arbitrary,
unreasonable or capricious rests upon the appellant. Barone v. Dep't of Hum.
Servs., 210 N.J. Super. 276, 285 (App. Div. 1986).
When determining one's eligibility for pension benefits, "eligibility is not
to be liberally permitted." Smith v. Dep't. of Treasury, Div. of Pensions &
Benefits, 390 N.J. Super. 209, 213 (App. Div. 2007). "Instead, . . . the applicable
guidelines must be carefully interpreted so as not to 'obscure or override
considerations of . . . a potential adverse impact on the financial integrity of the
[f]und.'" Ibid. (alterations in original) (quoting Chaleff v. Teachers' Pension &
Annuity Fund, 188 N.J. Super. 194, 197 (App. Div. 1983)). Accord DiMaria v.
Bd. of Trs., Pub. Emps.' Ret. Sys., 225 N.J. Super. 341, 354 (App. Div. 1988).
The burden to establish pension eligibility is on the applicant, not the Board.
Patterson v. Bd. of Trs., State Police Ret. Sys., 194 N.J. 29, 50-51 (2008).
Triola primarily argues that the Board's denial of a ten-year extension to
her PERS account was arbitrary, capricious, and unreasonable. Two statutory
provisions control membership in PERS when a member's public employment
ends. N.J.S.A. 43:15A-7(e) provides: "Membership of any person in the
A-1784-18
8
[PERS] retirement system shall cease if he shall discontinue his service for more
than two consecutive years." In turn, N.J.S.A. 43:15A-8(a) provides:
If a member of the retirement system has been
discontinued from service without personal fault or
through leave of absence granted by an employer or
permitted by any law of this State and has not
withdrawn the accumulated member’s contributions
from the retirement system, the membership of that
member may continue, notwithstanding any provisions
of this act if the member returns to service within a
period of [ten] years from the date of discontinuance
from service.
N.J.S.A. 43:15A-8(a) is a "discrete and limited exception," Del Pomo v. Bd. of
Trs., Pub. Emps.' Ret. Sys., 252 N.J. Super. 430, 433 (App. Div. 1991), to the
general rule that should "be narrowly construed," Petition of Singer Asset Fin.
Co., 314 N.J. Super. 116, 121 (App. Div. 1998). The account cannot be extended
"unless there was a return to public service." Del Pomo, 252 N.J. Super. at 433.
The decision not to renew Triola's contract as an adjunct professor does
not fall within N.J.S.A. 43:15A-8(a). Triola was employed under a discrete,
nontenured, one-year contract, not an ongoing employment position. We view
this as similar to the annual contracts awarded to nontenured schoolteachers.
See Pascack Valley Reg'l High Sch. Bd. of Educ. v. Pascack Valley Reg'l
Support Staff Ass'n, 192 N.J. 489, 491 (2007) (noting non-tenured school
employees "have no right to the renewal of their individual contracts"); Bd. of
A-1784-18
9
Educ. v. Wyckoff Educ. Ass'n, 168 N.J. Super. 497, 501 (App. Div. 1979)
(nonrenewal of nontenured teacher contracts "is a management prerogative").
In Lally v. Pub. Emps.' Ret. Sys., a municipal councilwoman who served
two three-year terms did not return to public service for more than two years.
246 N.J. Super. 270, 272 (App. Div. 1991). She argued she was entitled to the
ten-year extension in N.J.S.A. 43:15A-8(a). Ibid. We deferred to the Board's
interpretation, finding that the petitioner "was not laid off, nor was her position
abolished." Ibid. Her discontinuance was triggered by "operation of law upon
her departure from office as a municipal councilwoman." Id. at 271-72. We
recognized that N.J.S.A. 43:15A-8(a) was limited to circumstances where a
member is on approved leave of absence without pay, or his employment
terminates through no fault of his own, such as a layoff or abolishment of a
position. Id. at 272.
There was nothing unpredictable about Triola's situation. She accepted a
limited term position, knowing that nonrenewal would leave her short of the
required creditable service for vesting and that her PERS account would expire
under N.J.S.A. 43:15A-7(e) unless she returned to covered employment within
two years.
A-1784-18
10
Triola has failed to demonstrate the Board's determinations were arbitrary,
capricious, or unreasonable. The plain meaning of the relevant statutes
supported the Board's determinations that: (1) Triola's PERS account expired on
September 30, 2015, as two years had lapsed since her last pension contribution
on June 30, 2015; and (2) she did not qualify for a ten-year extension of her
PERS account under N.J.S.A. 43:15A-8(a). These determinations are entitled
to the deference we give to an administrative agency's interpretation of statutes
and regulations within its implementing responsibility. Wnuck, 337 N.J. Super.
at 56. This is particularly so in the absence of any showing that the Board has
rendered an inconsistent or contrary prior decision, or otherwise acted in an
arbitrary, capricious, or unreasonable manner.
Because the controlling facts were undisputed, the Board decided that a
testimonial hearing was not necessary. See N.J.A.C. 1:1-4.1(a) ("After an
agency proceeding has commenced, the agency head shall promptly determine
whether the matter is a contested case."). Triola argues that the Board's denial
of an OAL hearing was arbitrary, capricious, and unreasonable and denied her
right to due process. She contends an OAL hearing was necessary because she
intended to produce evidence that she was ineligible for PERS benefits from
2010 to 2013 because she did not meet the monetary or hourly requirements
A-1784-18
11
under N.J.S.A. 43:15A-7(d)(3) and (4) and that each successive semester was
"reemployment" in a PERS eligible position. We disagree. The related facts
were not material to her statutory eligibility to keep her account open or to an
account extension, and her legal arguments related to those facts were meritless.
As explained by our Supreme Court:
It is well-established that where no disputed issues of
material fact exist, an administrative agency need not
hold an evidential hearing in a contested case.
Cunningham v. Dept. of Civil Service, 69 N.J. 13, 24–
25 (1975). The mere existence of disputed facts is not
conclusive. An agency must grant a plenary hearing
only if material disputed adjudicative facts exist. Bally
Mfg. Corp. v. Casino Control Comm'n, 85 N.J. 325, 334
(1981). The key issue therefore is whether any material
facts remained in dispute when the director made her
final decision.
[Frank v. Ivy Club, 120 N.J. 73, 98 (1990) (emphasis in
original).]
Because there were no material facts in dispute with respect to the
controlling legal issues, "the administrative procedures followed fully
comported with administrative due process." Ibid.
Triola also argues that because her GCC contract was not guaranteed from
semester to semester, each new semester counts as a new PERS enrollment
despite N.J.S.A. 43:15A-7. We disagree. An adjunct professor remains a
member of PERS during "short, regularly-occurring breaks between periods of
A-1784-18
12
reasonably expected continued employment . . . ." Estate of Hagel v. Bd. of
Trs., Pub. Emps.' Ret. Sys., 226 N.J. Super. 182, 186 (App. Div. 1988).
Triola further argues the Board should be equitably estopped from
denying the ten-year extension of her PERS account because the Assistant
Director and other employees of the Division of Pensions represented to her that
her account would remain open until 2025. We are unpersuaded.
"Here, as in all cases, equity follows the law." Berg v. Christie, 225 N.J.
245, 280 (2016). A pension member cannot obtain an equitable remedy
unavailable under applicable statutory law. Ibid. "When positive statutory law
exists, an equity court cannot supersede or abrogate it." In re Quinlan, 137 N.J.
Super. 227, 261 (Ch. Div. 1975), modified and remanded on other grounds, 70
N.J. 10 (1976). Triola cannot invoke an equitable doctrine to override an
unambiguous statute. Berg, 225 N.J. at 280.
In any event, the doctrine of equitable estoppel does not apply here. The
doctrine is limited to "conduct, either express or implied, which reasonably
misleads another to his prejudice so that a repudiation of such conduct would be
unjust in the eyes of the law." McDade v. Siazon, 208 N.J. 463, 489 (2011)
(quoting Dambro v. Union Cnty. Park Comm'n, 130 N.J. Super. 450, 457 (Law
Div. 1974)). "Equitable estoppel is applied in only very compelling
A-1784-18
13
circumstances." Davin, L.L.C. v. Daham, 329 N.J. Super. 54, 67 (App. Div.
2000). It is "rarely applied against a governmental entity, . . . particularly when
estoppel would 'interfere with essential government functions,'" O'Malley v.
Dep't of Energy, 109 N.J. 309, 316 (1987) (quoting Vogt v. Borough of Belmar,
14 N.J. 195, 205 (1954) (citations omitted)). "[T]he creation of legislation is an
essential function of the Legislature, so that sovereign immunity bars the
equitable estoppel claim." Berg, 225 N.J. at 280. Consequently, the admittedly
incorrect information she received does not provide grounds to ignore the plain
language of N.J.S.A. 43:15A-7(e), which mandates that Triola's PERS account
expired on September 30, 2015.
In addition, "[e]quitable estoppel may be invoked against a governmental
entity only 'to prevent manifest injustice.'" Berg, 225 N.J. at 280 (quoting
O'Mally, 109 N.J. at 316). While it is undisputed that Division employees
incorrectly informed Triola that her PERS account would remain open until
2025, she has not demonstrated it prejudiced her. Although claiming she was
deprived of the opportunity to take unspecified further action, she has not shown
what action she could have taken to keep her PERS account open. We discern
no compelling circumstances or manifest injustice.
A-1784-18
14
Triola's remaining arguments are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-1784-18
15