Cullum v. Cnty. of Hudson

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino, Guadagno, and Gilson. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1748-13. Arthur G. Nevins, Jr., argued the cause for appellant. Cheyne R. Scott argued the cause for respondent County of Hudson (Chasan Leyner & Lamparello, PC, attorneys; Ms. Scott, of counsel and on the brief). Michael T. Wilkos argued the cause for respondent Hudson County Board of Chosen Freeholders (Florio & Kenny, L.L.P., attorneys; Edward J. Florio, of counsel and on the brief; Mr. Wilkos, on the brief). PER CURIAM

Plaintiff Joseph V. Cullum, a retired Hudson County employee, appeals the trial court's dismissal on summary judgment of his complaint seeking noncontributory pension benefits ("NCP") under the General Noncontributory Pension Act, N.J.S.A. 43:8B-1 to -15. We affirm.

The legally relevant facts here are substantially undisputed. Plaintiff was born in August 1947. He is currently sixty-seven years of age. In July 1969, at the age of twenty-one, plaintiff began working as a social worker for defendant County of Hudson ("the County").

Plaintiff continuously worked for the County until his retirement at the age of fifty-seven on June 3, 2005. In total, plaintiff worked for the County for thirty-five years, ten months, and twenty-seven days.

At the time plaintiff began working for the County in 1969, he had the option of joining the Hudson County Contributory Pension ("HCP") program. Plaintiff elected not to join the HCP and consequently no pension contributions were deducted from his paychecks. He claims that he declined to join the HCP because of concerns about alleged corruption and mismanagement.

In December 1973, the Legislature passed certain amendments to the New Jersey Public Employees Retirement System ("PERS"), generally requiring State employees to enroll in the PERS. See N.J.S.A. 43:15A-1 to -161. Soon thereafter, in a notice dated February 1, 1974, the HCP instructed then-current employees in the County that it would close the HCP to new members after April 1, 1974, thereby excluding new employees from enrolling "forever." Once again, plaintiff chose not to join the HCP and he continued to have no pension deductions taken out of his pay.

As a consequence of opting out of the HCP, plaintiff was barred from joining any type of contributory pension plan including the PERS. Along with several other County employees, plaintiff tried to join the PERS in 1991, but they were found ineligible to do so. Plaintiff and others subsequently renewed their efforts in early 2001, petitioning the Hudson County Board of Chosen Freeholders, the Governor-elect, and certain legislators. These efforts were unsuccessful.

Plaintiff then focused his efforts on obtaining eligibility for a pension under the NCP program. The controlling provision in the NCP statute, N.J.S.A. 43:8B-4, which was enacted in 1955, prescribes as follows:

In order to be eligible for a pension under the provisions of this act, an employee must be at least 65 years of age, or have been employed by an employer for at least 40 years, or be permanently and totally disabled.

[N. J.S.A. 43:8B-4 (emphasis added).]

The statute defines an "employee" as "any person holding office, position, or employment in any county, municipality, or school district in the State." N.J.S.A. 43:8B-1(a) (emphasis added).

A portion of N.J.S.A. 43:8B-5 adds one final limitation for non-disabled retirees. It specifies that "[n]o employee shall be eligible for pension benefits other than benefits based upon disability hereunder unless he shall have at least 15 years of employment continuously, or in the aggregate, with the employer." Ibid. (emphasis added).

It is undisputed that plaintiff was not sixty-five years of age when he retired from the County in 2005. Nor is it disputed that plaintiff was not "holding" a position as a County employee when he reached the age of sixty-five in 2012. It is also conceded that plaintiff did not work for the County for forty years, and that he is not disabled.

Despite the plain language of the NCP statute, plaintiff chose to retire at the age of fifty-seven, just over four years shy of the forty years of service mandated for NCP eligibility under N.J.S.A. 43:8B-4. In his resignation letter to Angelica Harrison, the then-Director of the County's Division of Social Services, plaintiff proclaimed that he was not "forfeiting any benefits [he had] gained through [his] participation in the Hudson County Non-Contributory Pension [Plan] over the last 35 years of [his] employ."

At oral argument on the appeal, plaintiff's counsel represented that plaintiff retired in 2005 because his wife had become ill. Assuming that is true, it still does not affect the NCP eligibility criteria imposed by the Legislature.

Nevertheless, plaintiff had been specifically advised before his retirement by the Secretary of the County's Pension Fund Commission in a March 2, 2005 letter that:

The eligibility for a Non-Contributory [Pension] states an employee must be at least 65 years of age, or have been employed by an employer for 40 years, or be permanently and totally disabled.

You must be an employee to apply for one of the above. You cannot leave the County and then come in and apply, there is no vesting in the Non-Contributory Pension.
[(Emphasis added).]

Plaintiff's ineligibility for NCP benefits was further documented in a handwritten notation that then-Director Harrison made on his resignation letter, stating: "Advised [plaintiff there is] no vesting for a non-contributory funded pension in Hudson. No participation by way of deduction of payroll contributions."

After turning sixty-five in August 2012, plaintiff submitted an application to the County for NCP benefits in November 2012. In a letter dated March 4, 2013, the County denied plaintiff's application, advising him that he was neither an "employee" at the time he turned sixty-five, nor did he have the requisite forty years of service under the statute.

Plaintiff then filed the present action in lieu of prerogative writs in the Law Division in April 2013 against the County and the County's Board of Freeholders, seeking to compel those defendants to provide him with NCP benefits. After discovery, defendants moved for summary judgment.

In opposing the summary judgment motion, plaintiff argued that the language in N.J.S.A. 43:8B-5, stating that a non-disabled employee must have "at least 15 years of employment," should be read to grant him NCP eligibility because he worked for the County for more than fifteen years. He further argued that the County's employee manual referencing this fifteen-year provision had not specified that an NCP applicant attaining such length of service needed to still be working for the County at the age of sixty-five to be eligible. Furthermore, plaintiff argued that the denial of NCP benefits to him was unfair and inequitable.

The motion judge, Hon. Francis B. Schultz, rejected plaintiff's contentions and granted summary judgment, relying on the clear and unambiguous terms of the NCP statute. In his oral decision, Judge Schultz emphasized, among other things, that plaintiff was not "holding" a position with the County when he turned the age of sixty-five:

The interpretation of the [NCP] statutes mentioned above should be based on . . . generally accepted meaning under N.J.S.A. 1:1-1, which states that "in the construction of the laws and statutes of this state, both civil and criminal, words and phrases shall be read and construed with their context and shall . . . be given their general accepted meaning." N.J.S.A. 43:8B-1(a) defines employee as any person holding — and besides the word holding, holding position or employment in any county, municipality or school district in the state. [ N. J.S.A.] 43:8B-1(a).
The [L]egislature chose the word "holding" instead of the words "held" or a combination of words "holding or who held" in defining employee. By using the present participle tense of the word "hold" which denotes that an action is continuously happening, [the L]egislature indicates that current employment was necessary.

Plaintiff now appeals, contending that the trial court misconstrued the terms of the statute and that the denial of NCP benefits to him is inequitable and unfair. We reject his contentions, and affirm the trial court's judgment, substantially for the reasons articulated in Judge Schultz's oral opinion. We add only a few comments.

As with any issue of statutory interpretation, the court must examine "'[t]he plain language of [each] statute' and 'appl[y] to the statutory terms the generally accepted meaning of the words used by the Legislature.'" L.A. v. Bd. of Educ., 221 N.J. 192, 201 (2015) (quoting Patel v. N.J. Motor Vehicle Comm'n, 200 N.J. 413, 418 (2009)). "'When the Legislature's chosen words lead to one clear and unambiguous result, the interpretative process comes to a close, without the need to consider extrinsic aids.'" Ibid. (quoting State v. Shelly, 205 N.J. 320, 323 (2011 )).

Here, the controlling terms of the NCP statute are straightforward and unambiguous. Under N.J.S.A. 43:8B-4, an "employee" must either be disabled, the age of sixty-five, or have attained forty years of service. Plaintiff met none of these requirements. The fact that he had accumulated the fifteen years of service separately required of non-disabled retirees under N.J.S.A. 43:8B-5 does not alter the baseline requirements of N.J.S.A. 43:8B-4.

The motion judge correctly found that plaintiff was not an employee when he turned sixty-five because he was not "holding" a position with the County at that time. See N.J.S.A. 43:8B-1(a). That is the sensible and common meaning of the word "holding," which connotes a condition in the present tense. Our courts have similarly construed language that uses the present participle construction. See, e.g., Verizon New Jersey Inc. v. Hopewell Borough, 26 N.J. Tax 400, 417-18 (Tax 2012) (interpreting the term "providing" in N.J.S.A. 54:4-1 to limit the applicable tax provision to include only those entities that "continued to provide" telephone service during the year in question); State, Dept. of Envtl. Protection v. Exxon Corp., 151 N.J. Super. 464, 481 (Ch. Div. 1977) (refusing to apply the term "discharging" to past behavior or conduct); Warwick v. Monmouth County Mut. Fire Ins. Co., 44 N.J.L. 83, 86-87 (Sup. Ct. 1882) (interpreting the word "insuring" to "appropriately [indicate] a person holding such a continuing policy during any part of the time covered by the terms of the policy") (emphasis added). This also comports with the usage recognized in a common dictionary. See, Present Participle, Merriam-Webster Dictionary, http://www.merriam-webster.com/dictionary/present%20participle (last visited April 22, 2015) (defining a present participle as "a verb form that ends in '-ing' and that is used with 'be' to refer to action that is happening at the time of speaking or a time spoken of") (emphasis added).

We also reject plaintiff's attempt to cloud the analysis by referring to an unrelated statute, N.J.S.A. 43:13-2, which deals with eligibility criteria for a contributory municipal pension. That statue is clearly inapposite, as plaintiff admittedly never made any pension contributions. Nor does the alleged omission of the full eligibility terms of the statute from the County's prior employee manual alter the eligibility terms of the law enacted by our State's Legislature.

Like the motion judge, we discern no undue harshness or inequity in applying the clear requirements of the statute to plaintiff and denying him NCP benefits. He had the opportunity to join contributory pension programs on multiple occasions earlier in his service and declined to do so. Before he retired, at the age of fifty-seven, he was specifically warned in writing that he would not be eligible for NCP benefits without attaining forty years of service or working to the age of sixty-five. Plaintiff ignored that warning and left his position prematurely. Although his personal or family reasons for doing so may be understandable, they cannot alter the plain requirements of the law.

Because we agree that plaintiff is ineligible for NCP benefits as a matter of law, we need not reach defendants' statute of limitations arguments.

Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION