For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Francis, J.
Plaintiff Harriet B. Geller, a teacher in the Newark public school system, challenged a decision of the Board of Trustees of the Teachers' Pension and Annuity Fund which held that she had lost certain pension benefits by reason of her failure to terminate her maternity leave within a statutorily required period of two years. After hearing in the Division of Pensions the decision was affirmed, as it was again thereafter in an unreported opinion of the Appellate Division. We granted certification. 53 N.J. 64 (1968).
Plaintiff became a school teacher in Newark in 1930 at age 19. She enrolled in the Pension Fund and agreed to pay the assessed contribution rate of 3.91% of her salary. Except for certain authorized leaves of absence, she has continued as a teacher and pension-fund member down to the present time.
On May 1, 1945, Mrs. Geller took an approved maternity leave and returned to her teaching duties on September 1, 1947, two years and four months later. In 1945 the teachers' pension statute provided:
"The membership of any person in the retirement system shall cease:
(a) If he shall be continuously absent without pay for a period of more than two years;
The board of trustees shall send written notice to the last known address and to the last employer of a member between sixty and fifty days in advance of the date on which his inactive membership shall expire as provided in paragraphs 'a' and 'b' of this section." R.S. 18:13-41 as amended L. 1944, c. 185 § 2 p. 693.*fn1
Mrs. Geller denied having received any such notice of impending expiration of her membership in the Pension Fund.
At the hearing it was shown that the Board records relating to her membership prior to September 1, 1947 had been destroyed in accordance with the usual practice in such cases. It appeared also that the persons who were charged with the duty of sending the notice were no longer available as witnesses. However, the Board adduced substantial evidence of the administrative practice routinely followed in 1947 and prior thereto with respect to the sending of such notices. When, in response to receipt of the statutory notice of impending expiration, a teacher acted to assure continuation of membership in the Fund, the Board kept his file open, which file always contained a copy of the notice that had been sent. When, however, the teacher failed to respond to the warning notice, his file was closed and destroyed after a period of time. The Board maintained therefore that since Mrs. Geller's file had been destroyed, the sending of the notice to her had been shown circumstantially. After reviewing the evidence, the Hearing Officer said he could not find that compliance with the statute had not been shown.
In view of his appraisal of the proof, the concurrence of the Board of Trustees after consideration of the exceptions filed thereto by Mrs. Geller, the affirmance by the Appellate Division, and our own examination of the record, we cannot say the conclusion reached is so lacking in substantial support that it should be rejected. But resolution of the notice issue disposes of but one aspect of the pension claim. Subsequent events must be considered.
On October 30, 1947, two months after Mrs. Geller resumed her teaching post, the Fund advised her by letter that her previous membership had expired on May 1, 1947, but since she had certain equities standing to her credit under that membership, a new pension account would be opened for her as of September 1, 1947. However, since her age at the time of the new enrollment would be 36 years, and since the rate of contribution depended upon that age, her new rate ...