IN THE MATTER OF ELIZABETH BISHOP

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2349-05T52349-05T5

IN THE MATTER OF

ELIZABETH BISHOP

 
_________________________________________________

Argued December 19, 2006 - Decided July 16, 2007

Before Judges Payne and Lihotz.

On appeal from a Final Administrative

Determination of the Board of Trustees,

Police and Firemen's Retirement System.

Brian D. Kenney argued the cause for

appellant (Nuzzi & Mason, attorneys;

Mr. Kenney, of counsel and on the brief).

Christine Lucarelli, Deputy Attorney

General, argued the cause for respondent

Board of Trustees, Police and Firemen's Retirement System (Stuart Rabner, Attorney General, attorney; Michael J. Haas,

Assistant Attorney General, of counsel;

Ms. Lucarelli, on the brief).

PER CURIAM

Elizabeth Bishop, a former Paterson police officer, appeals from a final determination of the Board of Trustees, Police and Firemen's Retirement System (PFRS or Board) denying, as untimely, her request for a hearing in the Office of Administrative Law to appeal the Board's denial of her application for accidental disability retirement benefits.

Bishop claims that she had been subjected to the sexual harassment of a police sergeant in 1993 and 1994, for which he was disciplined, and commencing again in 1998, resulting in disabling post-traumatic stress disorder. She made application for ordinary disability retirement benefits on November 16, 2000, and for accidental disability retirement benefits on November 29, 2000.

In a letter addressed to Bishop and dated, September 25, 2001, PFRS reported the Board's denial, on the preceding day, of Bishop's application for accidental disability retirement benefits, finding that the incidents, commencing in August 1998, and allegedly causing Bishop's disability "were not 'traumatic events' as detailed by statute and court decisions and that [her] disability was not the direct result of the incidents described." However, the Board granted Bishop ordinary total disability retirement benefits, effective January 1, 2001, and stated: "The acceptance by you of ordinary disability effective January 1, 2001 will not prejudice an appeal of the Board's denial of accidental disability retirement." The letter additionally provided:

If you disagree with this determination of the Board of Trustees, you may request a formal hearing before an Administrative Law Judge within the Office of Administrative Law, by sending a written statement to the Board of Trustees within 45 days from the date of this letter. Please state the reason of your disagreement of the Board's determination and any supporting documentation if you have not already done so. If no written statement is received within the 45-day period, this determination shall be considered final.

In a letter to the Board, dated September 26, 2001, and likely written before receipt of the Board's decision, the firm of Nuzzi, Mason & Cabana noted that it represented Bishop and set forth its understanding that Bishop had been approved for an ordinary disability pension on September 24, 2001. The letter continued:

It is Ms. Bishop's position that her disability is a direct result of an incident that occurred in August 1998 resulting in accidental disability. She is aware of her right to appeal the decision and we are awaiting formal notice of the Board's determination prior to commencing the appeal.

A complete copy of Bishop's file was requested.

According to PFRS, on October 24, 2001, the Division of Pension and Benefits mailed a final letter to Bishop indicating the benefits payable under its ordinary disability retirement plan. Bishop has continued to collect such benefits since her retirement on December 31, 2000.

Four years later, Bishop's counsel followed up in the matter, sending a letter to PFRS, dated October 26, 2005, in which counsel stated that Bishop wished to appeal and took the position that the firm's September 26, 2001 letter constituted notice of appeal. Counsel explained the firm's delay in prosecuting Bishop's appeal by stating that the attorney who had authored the initial correspondence had left the firm to join the Morris County Prosecutor's Office, that an additional attorney working on the matter had quit without notice, and that the firm had "packed up all of its files and moved its location from Boonton to Dover." A hearing was requested.

The request was denied by PFRS on November 14, 2005, and Bishop's counsel was informed of that fact by letter dated November 15, 2005. In a final administrative determination, dated December 13, 2005, the Board set forth the factual and procedural history that we have detailed, and it reiterated its conclusion that Bishop's disability "was not a direct result of a traumatic event occurring during and as a result of the performance of her regular and assigned duties," as statutorily required. It then set forth the requirement of N.J.S.A. 52:14B-9 that Bishop request a hearing, having been notified of her right to appeal from the Board's decision to deny her an accidental disability pension, and the forty-five-day time limitation for the exercise of that right set forth in N.J.A.C. 17:4-1.7(a), including the cautionary statement that if a written statement providing the foundation for an appeal were not received within forty-five days of the Board's decision, "the determination by the Board shall be final." The Board then noted the reasons given for the delay in appealing, and it concluded:

There is no showing of a legitimate reason to reopen this case. Accordingly, since you did not file an appeal within the 45-day requisite period, the PFRS Board's decision of September 24, 2001, became final.

On appeal from the Board's rejection of Bishop's belated request for a hearing, Bishop focuses her arguments on her entitlement to an accidental disability retirement allowance. We decline to address this issue, which is not properly before us, and in any event cannot be resolved on the basis of the present, contested, record.

We reject Bishop's arguments that relate to the Board's denial of her request for a hearing as untimely. Our role in reviewing the actions of the Board in this regard is limited, Matter of Musick, 143 N.J. 206, 216 (1996), and we are permitted to intervene only in those rare circumstances when we find the Board's determination to have been unsupported by the evidence, inconsistent with the Board's statutory mission or other state policy, or arbitrary, capricious and unreasonable. Campbell v. Dept. of Civil Serv., 39 N.J. 556, 562 (1963).

The Administrative Procedure Act (APA) requires that in a contested case, all parties be afforded an opportunity for a hearing after reasonable notice, but unless otherwise provided by law, permits an agency to "place on any party the responsibility of requesting a hearing if the agency notifies [her] in writing of [her] right to a hearing and of [her] responsibility to request the hearing. N.J.S.A. 52:14B-9(a) and (g). PFRS placed that responsibility on Bishop, as it was authorized to do by the APA and by its own enabling legislation, N.J.S.A. 43:16A-13(7), by adopting N.J.A.C. 17:4-1.7, which sets forth the requirement that notice be given of a right to appeal and of the appealing party's obligation to do so within forty-five days of written notice of the Board's determination. The Legislature's broad grant of regulatory authority to the Board clearly encompassed its ability to establish time limitations for the resolution of contested cases. Cf. Kaprow v. Bd. of Educ. of Berkeley Twp., 131 N.J. 572, 582 (1993)(recognizing the authority of the State Board of Education to establish similar time limitations under the school laws, stating that "[t]he limitations period provides a measure of repose, an essential element in the proper and efficient administration" of the law).

As we have previously indicated, the required notice was properly provided to Bishop, in accordance with the regulation, in the September 25, 2001 letter to her. But, despite her counsel's evident awareness of administrative procedures, no notice of appeal was given until a period of more than four years had elapsed. In these circumstances, we find nothing arbitrary or capricious in the Board's denial, as untimely, of an appeal that did not challenge the validity of any statute or regulation, but simply contested its application. Schiabble Oil Co. v. N.J Dept. of Envt'l Prot., 246 N.J. Super. 29, 32-33 (App. Div.), certif. denied, 126 N.J. 387 (1991); State v. Dept. of Cmty. Affairs, 177 N.J. Super. 595, 599-600 (App. Div. 1980). A meaningful opportunity for appeal was afforded to Bishop. Kaprow, supra,, 131 N.J. at 582-83. She is entitled to no more. Clearly, the Board has a reasonable interest in prompt resolution of pension disputes to ensure proper administration of the pension system, id. at 582, and to permit meaningful evaluation of claims while evidence remains available and memories are fresh.

Bishop's counsel has claimed on appeal that Bishop did not receive the Board's September 25, 2001 letter, despite the fact that it was correctly addressed to her. However, the record lacks any certification by Bishop attesting to that fact. Moreover, the record clearly indicates counsel's awareness of the Board's September 24, 2001 action denying Bishop's request for an accidental disability pension. In these circumstances, we find counsel's lack of diligence in verifying what was known to have occurred to have been unreasonable. Knorr v. Smeal, 178 N.J. 169, 180-81 (2003). Lack of notice of known facts cannot serve to unreasonably extend the appeal period for the four years that would be required in this case.

Nor do we find anything arbitrary in the Board's determination that counsel's reasons for the delay in appealing did not constitute good cause for permitting Bishop's appeal to be heard. "Carelessness may be excusable when attributable to an honest mistake that is compatible with due diligence or reasonable prudence." Mancini v. EDS, 132 N.J. 330, 335 (1993). However, the conduct described in this case does not meet this standard.

Affirmed.

 

The record suggests a basis for finding additional factors contributing to Bishop's total psychological disability, including domestic abuse by a former spouse.

We note that the legal issue that Bishop raises is presently being considered by the New Jersey Supreme Court. See In re Patterson, 382 N.J. Super. 366 (App. Div.), certif. granted, 186 N.J. 364 (2006); Moore v. Bd. of Trs, State Police Retirement Sys., 382 N.J. Super. 347 (App. Div.), certif. granted, 186 N.J. 365 (2006); Richardson v. Bd. of Trs, Police & Firemen's Retirement Sys., certif. granted, 186 N.J. 364 (2006) and Guadagno v. Bd. of Trs, Police & Firemen's Retirement Sys., appealed as of right, Supreme Court Docket No. A-123-05.

(continued)

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A-2349-05T5

July 16, 2007