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Swiney v. Department of Treasury

Decided: June 18, 1964.

FRANCES M. SWINEY, PETITIONER-APPELLANT,
v.
DEPARTMENT OF THE TREASURY, DIVISION OF PENSIONS, BOARD OF TRUSTEES, TEACHERS' PENSION ANNUITY FUND, DEFENDANTS-RESPONDENTS



Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Kilkenny, J.A.D.

Kilkenny

Frances M. Swiney, a retired public school teacher (hereinafter "applicant") appeals from a final determination of the Board of Trustees of the Teachers' Pension and Annuity Fund of the State of New Jersey (hereinafter "Pension Fund"), denying her application for retirement coverage under N.J.S.A. 18:13-112.70c solely on the ground that she did not file her application for retirement prior to January 1, 1963. The Pension Fund received applicant's formal application for retirement on February 4, 1963, the retirement to become effective July 1, 1963.

The legislative purpose in adopting N.J.S.A. 18:13-112.70c, L. 1962, c. 108, § 1, was to enable teachers and others covered by this pension fund in a certain age group to retire not later than July 1, 1963 and to receive both the full pension allowance and social security benefits. Without this amendment to the law, a teacher or other member of this pension fund, upon retirement, would have his retirement allowance reduced "by the amount of the old age insurance benefit under Title II of the Social Security Act [42 U.S.C.A.

§ 401 et seq. ] paid or payable to him whether received or not." N.J.S.A. 18:13-112.70.

So far as pertinent herein, N.J.S.A. 18:13-112.70c provides:

"The reduction provided in section 68 of the act to which this act is a supplement [ N.J.S.A. 18:13-112.70] shall not be made in the case of * * * women born after January 1, 1892 and before July 2, 1896 * * * provided such individuals have retired or, in case of individuals who were born prior to January 1, 1900, shall file application for retirement prior to January 1, 1963, for retirement to become effective not later than July 1, 1963. * * *" (Italics ours)

The applicant was born on March 6, 1895 and, admittedly, comes within the purview of the beneficent provisions of this statute.

The formal determination of the board of trustees of the Pension Fund shows the following uncontroverted facts:

"On July 26, 1962 Frances M. Swiney wrote to John J. Allen, Secretary of the Teachers' Pension and Annuity Fund, stating that she intended to retire on December 1, 1962. She asked for a retirement quote as of that date.

On August 2, 1962 William W. Brooks, Chief, Retirement Bureau, answered Mrs. Swiney. He informed her that she was eligible for S-16 benefits and that her retirement application had to be filed at least 30 days prior to the effective retirement date. He also notified her that it would cost her an additional $172.09 to purchase a class B pension.

On October 3, 1962 the Fund received a check from Mrs. Swiney in the amount of $86.09 in partial payment for the class B pension.

On October 9, 1962 Mr. Brooks acknowledged receipt of the check and again advised Mrs. Swiney of the 30 day advance filing requirement.

On October 31, 1962 the Fund received the balance of the payments for the class B pension from Mrs. Swiney. Receipt of this check was acknowledged by Mr. Brooks on November 5, 1962.

On January 11, 1963 the Fund received a letter from Mrs. Swiney dated January 5, 1963, in which she stated that she had decided to retire on March 1, 1963.

On January 17, 1963 James F. DeWan, Assistant Chief, Bureau of Retirement, informed Mrs. Swiney that the Fund was holding a Certificate of Service and Final Salary, signed by Louis J. Messano, Secretary of Jersey City Board of Education on January 11, 1963, stating that her services would terminate on January 31, 1963. Again Mrs. Swiney was informed of the 30 day advance filing requirement.

On January 22, 1963 a corrected Certificate of Service and Final Salary was received by the Fund. The Fund was advised by the Jersey City Board of Education that Mrs. Swiney was resigning ...


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