THERESA TRIOLA v. BOARD OF TRUSTEES PUBLIC EMPLOYEES RETIREMENT SYSTEM -

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        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).
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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.




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      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


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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


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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

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             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

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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




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[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

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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.




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      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


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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

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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


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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.




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      Triola's remaining arguments are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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