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Bahrle v. Mirabelli

Decided: October 30, 1969.

OTTO BAHRLE ET AL., PLAINTIFFS,
v.
JOSEPH MIRABELLI, TOWNSHIP OF WEEHAWKEN, DIVISION OF PENSIONS IN THE DEPARTMENT OF THE TREASURY, STATE OF NEW JERSEY, AND THE BOARD OF TRUSTEES OF THE PUBLIC EMPLOYEES' RETIREMENT SYSTEM OF THE STATE OF NEW JERSEY, DEFENDANTS



Fink, J.s.c.

Fink

This action was instituted as a "proceeding in lieu of prerogative writs." In my judgment that form of proceeding is inappropriate in this case.

The action is a tort action by multiple plaintiffs for money based upon defendants' alleged wrongful neglect of duty. Plaintiffs' factual contentions in the pretrial order and the statement of issues contained therein make this abundantly clear, and the trial itself proceeded on that theory.

The pretrial order also included a waiver of trial by jury and the abandonment by plaintiffs of their claims for punitive damages.

The precise issues presented in the context of the facts of this case are apparently of first impression and the case itself is purportedly a "test case," with others awaiting its outcome.

Plaintiffs, about 26 in number, contend that they are regular employees of the Township of Weehawken and required by law when hired to join the Public Employees' Retirement System (PERS). They allege that defendant Mirabelli, the township clerk, was designated by the municipality as certifying agent and that it was his duty to inform them of their obligation to join the Pension Fund and to enroll them as required by law. Plaintiffs assert that Mirabelli neglected his duty to advise them of their obligation to join the Fund and to enroll them, and as a consequence they were not enrolled until sometime in 1966, which was a considerable period of time after they were hired.

The law provides that each employee is required to contribute to the Pension Fund by deductions from his salary. Employers are also required to contribute. Because plaintiffs were enrolled much later rather than when they were hired, each of them was, in addition to deductions for current contributions starting in 1966, required to contribute on a

monthly basis, by deduction from his salary, installments on account of accumulated arrears. At the request of the employees, who complained that the double deductions constituted a hardship, the Fund materially reduced the installments on account of arrears.

This suit, originally instituted against Mirabelli and the Township of Weehawken, was later amended to include the Division of Pensions and the Board of Trustees of the Public Employees' Retirement System of the State of New Jersey. In the interest of brevity I shall refer to both of those public bodies as the "State." Mirabelli and the township then cross-claimed against the State for contribution in the event that plaintiffs were successful in their action against them. In their amended complaint plaintiffs charge the State with a violation of duty in that it failed to enforce the statute which makes mandatory the enrollment of new employees.

The responsibility imposed on the Board is defined in N.J.S.A. 43:15A-17 which states that the "general responsibility for the proper operation of the Public Employees' Retirement System and for making effective the provisions of this Act shall be vested in the Board of Trustees subject to the limitations of the law."

The specific duty to inform a new employee as to his duties and obligations under the act as a condition of his employment is upon the employer. N.J.S.A. 43:15A-29 provides that

Upon the employment of a person to whom this act may apply, his employer shall inform him of his duties and obligations under this act as a condition of his employment.

N.J.S.A. 43:15A-67 provides that

The chief fiscal officer of the employer shall submit to the retirement system such information and shall cause to be performed in respect to each of the employees of the employer such duties as would be performed in the State service by the head of a Department of the State employing members of the retirement system.

Prior to the 1966 amendment of the above statute the employer was required to submit the information to the Board of Trustees rather than to the retirement system.

N.J.S.A. 43:15A-80 provides that

The chief fiscal officer of the county or municipality or the secretary of board of education of the school district shall submit to the Public Employees' Retirement System such information and shall cause to be performed in respect to each of the employees of the county, municipality or school district such duties as would be performed in the State service by the head of a department of the State employing members of the retirement system.

N.J.S.A. 43:15A-15 prescribes the duties of the head of a State Department and provides that

The head of a department or branch of the state service not included in a department employing a member shall submit to the board of trustees a statement showing the name, title, compensation, duties, date of birth and length of service of the member and any other information the board requires.

The employer is the Township of Weehawken. By resolution executed on February 19, 1962 Weehawken designated Joseph Mirabelli its township clerk, as certifying agent and the person responsible for the processing at the local level of all documents pertaining to PERS, particularly enrollments, members accounts, retirements and withdrawal claims.

The proofs establish that in 1965 the State undertook a survey of all New Jersey municipalities to determine whether any employees who had not established membership in PERS were required to establish membership as a condition of their employment. In accordance therewith, on November 22, 1965 a roster was sent to the Township of Weehawken with instructions that the information contained on the roster be completed for all employees who were not contributing to the Pension Fund or Social Security.

On February 15, 1966 Mirabelli, in response to the State's request, sent to the Division of Pensions a roster of township

employees who were not then contributing to the ...


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