PATRICIA SANTANGELO v. TEACHERS' PENSION AND ANNUITY FUND

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

PATRICIA SANTANGELO,

Appellant,

v.

TEACHERS' PENSION AND ANNUITY

FUND,

Respondent.

__________________________________________________

February 5, 2016

Submitted January 26, 2016 Decided

Before Judges Fisher and Rothstadt.

On appeal from the Division of Pensions and Benefits, Teachers' Pension and Annuity Fund, Agency No. TPAF 398307.

Bergman & Barrett, attorneys for appellant (Michael T. Barrett, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Thomas R. Hower, Deputy Attorney General, on the brief).

PER CURIAM

In May 2010, appellant Patricia Santangelo a member of the Teachers' Pension and Annuity Fund for approximately twenty-four years filed an ordinary disability retirement application based on a number of ailments, including celiac disease, hypothyroidism, irritable bowel syndrome, endometriosis, post-traumatic stress disorder, hypertension, diverticulitis and gastro-esophageal reflux disease. When the application was denied, Santangelo filed an administrative appeal and the matter was transferred to the Office of Administrative Law.

After conducting a three-day hearing, an administrative law judge recommended, on November 8, 2012, that the decision to deny the application be sustained. On December 7, 2012, the Board of Trustees issued a final decision that adopted the ALJ's recommendation. Santangelo appealed, and we affirmed. Santangelo v. N.J. Teachers' Pension & Annuity Fund, No. A-2184-12 (App. Div. June 9, 2014).

On November 5, 2013, while the appeal was pending in this court, Santangelo wrote to the Board of Trustees, seeking leave to file an application for retirement benefits "under a hardship basis." The Board considered and denied this request by letter to counsel dated December 9, 2013.

Days after our June 9, 2014 decision, Santangelo's counsel wrote to inquire about the status of her appeal of the Board's December 2013 decision. The Board responded that it had no record of such an appeal. In the communications that followed, counsel advised the Board that, on December 23, 2013, he had faxed and sent by regular mail a letter advising of an additional ailment upon which to base a disability pension Santangelo had been diagnosed with a cancerous lesion. Counsel forwarded a copy of his earlier letter and fax transmittal sheet. The fax transmittal sheet revealed that the December 23 letter was not received because the wrong number was dialed.1

The Board's secretary advised of the lack of evidence to support counsel's contention that the letter had been timely forwarded either by fax or regular mail. Viewing this as a challenge to his veracity, counsel responded by letter dated July 22, 2014

I have been practicing law for over 30 years and have never and would never "post date" a letter and falsely represent its authen-ticity. Aside from my certification relating to the authenticity of the appeal letter, I have little hard evidence to support that claim. [Other than what is suggested by the fax transmission and the hard copies of those documents,] as is our practice, the letter was sent regular mail as well. I have no explanation for why it was not received in your office.

The Board considered this, but denied Santangelo any relief, whether in the form of leave to file a late appeal, or leave to file a new application for retirement benefits, or a deferred retirement benefit earlier than the law allows. Santangelo now seeks our review of that final agency decision.

We start with the premise, which seems implicit in the final agency decision in question, that had the Board actually received counsel's fax or regular mailing of the December 23, 2013 letter when counsel represented it was sent, the application would have been entertained on its merits. In other words, the application conveyed by the December 23 letter was not rejected for any reason other than the Board concluded it was never received; the Board simply did not accept counsel's factual representation about the sending of the December 23 letter and relied on the applicable regulation that, absent "a written statement to the Board . . . within 45 days after the date of written notice of the determination," N.J.A.C. 17:1-1.3(d), no appeal is permitted.

As can be seen, the filing of a timely appeal turned solely on a factual dispute that the Board resolved against Santangelo without permitting an evidentiary hearing. In disposing of this appeal, we can no more accept on their face the Board's factual assertions than we can accept those offered by Santangelo's counsel. This dispute can be resolved only upon an impartial tribunal's examination of any relevant evidence that may be available on the subject and the offering to Santangelo of the other procedural due process rights normally attendant to the resolution of factual disputes in an administrative setting. Only upon a resolution of that factual dispute can it be said whether a timely appeal was filed.

We remand the matter to the Board for its referral of this dispute to the Office of Administrative Law for consideration by an administrative law judge.

Remanded. We do not retain jurisdiction.

1 The fax transmittal sheet reveals that an attempt was made on December 23 to send the letter to 609.984.5590 instead of the correct number, 609.984.5990.