IN THE MATTER OF ANTHONY CATOGGIO FOR LOIS CATOGGIO deceased

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0643-08T30643-08T3

IN THE MATTER OF ANTHONY

CATOGGIO FOR LOIS CATOGGIO,

deceased.

____________________________________________

 

Argued October 21, 2009 - Decided

Before Judges Axelrad and Fisher.

On appeal from the decision of the Board of Trustees of the Public Employees' Retirement System, Agency Docket No. PERS 2-10-164635.

Richard A. Friedman argued the cause for appellant Anthony Catoggio (Zazzali, Fagella, Nowak, Kleinbaum & Friedman, attorneys; Mr. Friedman, of counsel; Mr. Friedman and Michael P. Chiacchio, on the briefs).

Eileen S. Den Bleyker, Senior Deputy Attorney General, argued the cause for respondent Board of Trustees of the Public Employees' Retirement System (Anne Milgram, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Den Bleyker, on the brief).

PRE CURIAM

Anthony Catoggio (appellant) is the surviving spouse of Lois Catoggio, a member of the Public Employees Retirement System (PERS). When Mrs. Catoggio retired on March 1, 2000, she selected a pension option that called for her to receive a maximum allowance during her lifetime; that option precluded appellant's receipt of benefits following her death. PERS complied with that request and paid Mrs. Catoggio the maximum monthly benefits until she died on July 19, 2005.

Following Mrs. Catoggio's death, appellant contacted the Division of Pensions and Benefits (the Division) and claimed an entitlement to survivor benefits. He asserted that Mrs. Catoggio meant to provide for him after her death and that her selection of the maximum allowance was a mistake. The Division rendered a thorough written decision, which closely examined all appellant's contentions. Citing the applicable statutes and regulations, as well as the undisputed fact that Mrs. Catoggio's pension application contained her selection of a maximum allowance during her lifetime, the Division rejected appellant's claim.

Appellant contested that determination, the matter was transmitted to the Office of Administrative Law, and an administrative law judge (ALJ) conducted a two-day hearing, during which he received the parties' stipulation of facts and joint exhibits. The ALJ also heard the testimony of the son of appellant and Mrs. Catoggio, as well as the testimony of Mrs. Catoggio's sister and sister-in-law, regarding Mrs. Catoggio's stated intentions. By way of a written decision, the ALJ concluded that regardless of what Mrs. Catoggio may have expressed to others about her intentions, she unambiguously requested that PERS pay her the maximum allowance of benefits, which precluded appellant's receipt of benefits upon her death. After receiving exceptions to the ALJ's decision, PERS adopted the ALJ's findings and conclusions by way of a final agency decision on August 21, 2008. Appellant thereafter filed this appeal, arguing that the final agency decision must be reversed because, among other things, PERS "failed to obtain [Mrs.] Catoggio's signature on the election of benefits form required by N.J.S.A. 43:15A-50(a)."

N.J.S.A. 43:15A-50a sets forth the manner in which a PERS member, such as Mrs. Catoggio, may select from among the various options available:

[W]henever a member of the Public Employees' Retirement System elects a retirement benefit which is payable for the life of the member only and terminating at his death, without refund of any kind to the spouse, the member shall be required, before electing that benefit, to sign a form stating that the member has elected that benefit, that the member understands that it is payable during the member's lifetime only and that no benefits will be payable to the member's spouse after death. The Division of Pensions, Department of the Treasury, shall notify the member's spouse if the member identifies the spouse on the form. Notification shall be by certified mail to the spouse's address as provided on the form by the member. . . . The notice shall advise the spouse that the retirement benefit chosen by the member is payable during the member's lifetime only and that no benefits, other than any applicable life insurance benefits, shall be payable to the beneficiary after the member's death.

Boiled down to its essentials, appellant argues that this statute unambiguously requires that a PERS member, before making an election of a maximum allowance, must sign a document expressing the member's "understand[ing] that it is payable during the member's lifetime only and that no benefits will be payable to the member's spouse after death." Ibid. He claims that Mrs. Catoggio signed no such document. We disagree.

The record contains Mrs. Catoggio's application for a retirement allowance, which consists of several pages. At the top of the first page, the member is directed by words set forth in bold print to "read the attached instructions carefully before completing this application." The instructions, which are part of the application, include a page bearing, in large print, the heading: "PENSION OPTIONS." Each of the options described on that page has its own heading, also in large print. The following description is provided under the heading "Maximum Allowance":

Under the Maximum Allowance you receive the highest retirement allowance available to you without providing pension benefits to a beneficiary. Upon your death, your pension benefits cease. If you are married and choose the Maximum Allowance, your spouse will be notified of your choice.

You may wish to provide benefits for a beneficiary by selecting one of the options described in the following paragraphs. Selecting an option will reduce your monthly retirement allowance. The amount of the reduction in your benefit depends upon which option you choose. It is important to keep in mind that your option selection is irrevocable (cannot be changed under any circumstances) once your retirement becomes due and payable. Due and payable is defined as 30 days after your retirement date or 30 days after your retirement has been approved by the board of trustees, whichever is the later date.

[Footnote omitted.]

The statements in the first paragraph of these instructions mirror the statutory language upon which appellant's argument is based.

To be sure, the application's format did not call for Mrs. Catoggio to acknowledge her understanding by signing either a separate document or signing directly below or in close proximity to the statement in the instructions about the consequences for her surviving spouse should she elect the maximum allowance, as is the thrust of appellant's argument. But Mrs. Catoggio did fill out by hand two pages of the application, which pages urged her to read the instructions, check a box in order to indicate whether she chose the maximum allowance or some other option, and affix her signature, which was required to be notarized. Mrs. Catoggio checked the box for a maximum allowance, and signed the application; her signature was notarized.

PERS correctly argues that appellant's contention that N.J.S.A. 43:15A-50a insists upon a single, separate document containing the member's signature below a statement that the member understands the ramifications of an election of a maximum allowance exalts form over substance. The application consists of a series of documents. This integrated collection of documents contains precise instructions about the member's choice and requires that the member affirmatively make a choice and sign the application. Mrs. Catoggio completed the application in such a way as to leave no doubt that she chose the maximum allowance. Appellant's argument that she did not understand what she signed or was mistaken when she filled out the form is without merit. The law presumes that she read and understood what she signed. Aden v. Fortsh, 169 N.J. 64, 86 (2001). Considering that the information provided to her, which formed the basis for her choice, was clear and unambiguous in all relevant respects -- and incorporated the statutory language upon which appellant's argument is based -- we are compelled to conclude that Mrs. Catoggio understood what she was doing when she completed and submitted the application and that the application format fully complies with N.J.S.A. 43:15A-50a.

Appellant also argues he is entitled to relief because pension laws "should be liberally construed in favor of [their] intended beneficiaries." Invoking that rubric, as we observed in a similar context, "only begs the question." Smith v. State, Dep't of Treas., 390 N.J. Super. 209, 212 (App. Div. 2007). It is true that pension statutes have been "liberally construed and administered in favor of the persons intended to be benefited thereby" because they are "remedial in character." Geller v. Dep't of Treas., 53 N.J. 591, 597-98 (1969). That liberality, however, is afforded to the "person intended to be benefited"; it does not mean that eligibility is to be liberally allowed. Ibid.; Smith, supra, 390 N.J. Super. at 212-13. To the contrary, eligibility requirements must be carefully interpreted so as not to "obscure or override considerations of . . . a potential adverse impact" on the integrity of the fund from which benefits are paid. Id. at 213 (quoting Chaleff v. Teachers' Pension & Annuity Fund Trustees, 188 N.J. Super. 194, 197 (App. Div.), certif. denied, 94 N.J. 573 (1983)).

Here, as we have indicated, Mrs. Catoggio unambiguously opted for a maximum allowance. She received a maximum monthly allowance from the time of her retirement until she died five years later. Now, after his wife received the maximum benefits permitted by law, appellant would have PERS pay even more. We find that argument to be without merit. The policy of liberality spoken of in cases such as Geller is not to be understood as justifying PERS's payment of benefits beyond those authorized by law.

Lastly, appellant contends that the Board's denial of survivor benefits ignores "the obvious purpose" of N.J.S.A. 43:15A-50a, which, in his view, is to cause retiring members "to stop and reflect upon the information that the statute requires each member to be provided before the member makes the actual retirement benefit election." This contention, however, is undermined by the legislative history, which states that the "concept expressed within" N.J.S.A. 43:15A-50a "is to ensure that a spouse is notified that the member's maximum retirement option selection eliminates the beneficiary's entitlement to a retirement benefit, other than any applicable life insurance benefits, after the death of the member." See Governor's Reconsideration and Recommendation Statement to L. 1985, c. 382 (1986) (emphasis added). This legislative goal was indisputably met here. On January 14, 2000, PERS sent appellant a certified letter, which invoked N.J.S.A. 43:15A-50a, and informed appellant in plain English that his

spouse has selected the maximum retirement allowance. Under this choice, the monthly allowance is payable for the lifetime of the member only. Therefore, you will not receive any pension payments in the event of the death of your spouse.

The letter also provided appellant with a telephone number to call if he had any questions. There is nothing in the record to suggest that appellant made any inquiry concerning his rights after receiving this letter.

Finding insufficient merit in appellant's remaining arguments to warrant discussion in a written opinion, R. 2:11-3(e)(1)(D) and (E), we conclude that PERS fully adhered to the requirements of N.J.S.A. 43:15A-50a in this case.

 
Affirmed.

Appellant was entitled to and received group life insurance benefits.

In the section that required the member to opt for a particular manner of payment, the form again refers the member to the instructions regarding the available options.

PERS also sent letters to Mrs. Catoggio shortly after her choice was made. On January 28, 2000, PERS wrote to Mrs. Catoggio, confirming she had opted for the maximum allowance; this letter indicated "N/A" under the heading "Survivor Benefits." Approximately three weeks into her retirement, PERS sent Mrs. Catoggio another letter confirming the amount of her monthly allowance and stating that the benefit option was "max." Just as appellant was silent when he received his statutory notice Mrs. Catoggio also never uttered a discouraging word when her option was twice confirmed by PERS.

(continued)

(continued)

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A-0643-08T3

November 2, 2009