Conford, Michels and Pressler. The opinion of the court was delivered by Michels, J.A.D.
Plaintiff Patrick Crinnion appeals from a summary judgment of the Chancery Division declaring that he was not entitled to credit for the 12 years he was employed by defendant The Great Atlantic & Pacific Tea Company after age 65 in computing his yearly pension benefits under defendant's Employees' Retirement Plan ("Plan").
The facts are not in dispute. Plaintiff was employed by defendant from September 27, 1951 to October 1, 1976. When plaintiff submitted his application for employment he misrepresented his age. He stated on the application that his date of birth was September 15, 1911, whereas in truth and in fact his date of birth was September 15, 1899,
thereby understating his age by 12 years. Defendant apparently learned only shortly prior to plaintiff's retirement on October 1, 1976 that plaintiff had reached the normal retirement age of 65 years on September 15, 1964. Under the terms of the Plan, plaintiff's normal retirement date would have been October 1, 1964 and not October 1, 1976. Paragraph 3.1 of the Plan provides:
Normal Retirement Date. A Member's Normal Retirement Date shall be the first day of the calendar month next following the sixty-fifth anniversary of his date of birth. Except as provided in Section 3.4, any Member who reaches his Normal Retirement Date shall be retired by the Retirement Board on such date and his normal retirement allowance shall become effective on such date.
The Retirement Board which administered the Plan calculated plaintiff's yearly pension benefit on the basis of the number of years he worked prior to reaching age 65 on September 15, 1964 and did not give him credit for the years he worked thereafter. This resulted in reducing plaintiff's yearly pension benefits. He thereupon instituted this action to compel defendant to pay him yearly pension benefits calculated on the basis of the additional 12 years he worked after age 65. Judge Kentz in the Chancery Division held on cross-motions for summary judgment that plaintiff was not entitled to pension benefits calculated on the basis of the years he worked after his normal retirement date of October 1, 1964. He also held that plaintiff was barred from relief by reason of the intentional misrepresentation of his age at the time he applied for employment. Plaintiff appeals.
Plaintiff seeks a reversal and judgment in his favor, contending that enforcement of the provisions of the Plan requiring retirement on the first day of the calendar month next following his 65th birthday operated as a forfeiture of his vested rights to a pension calculated on the total years of service, and unjustly enriched defendant. He also contends that this provision of the Plan violates the letter and spirit of the Federal Employees' Retirement Income Security
Act of 1974, 88 Stat. 832, 29 U.S.C.A. § 1001 et seq. (commonly referred to as "ERISA").
At the outset, it is appropriate to point out that paragraph 12.6 of the Plan provides that "The Plan shall be construed, regulated and administered under the laws of the State of New York and in compliance with the applicable provisions of ERISA." Since the Plan specifies the law to govern its interpretation and the public policy of New Jersey does not dictate otherwise, the Plan will be interpreted under New York law. Knollmeyer v. Rudco Industries, Inc. , 154 N.J. Super. 309 (App. Div. 1977); Monsanto v. Alden Leeds , 130 N.J. Super. 245, 252 (Law Div. 1974); Shotwell v. Dairymen's, etc., Inc. , 22 N.J. Misc. 171, 174, 37 A.2d 420 (D. Ct. 1944).
Even though it is firmly settled in New York that a pension is not a pure gratuity, but rather a deferred portion of the compensation earned for services rendered (see Hadden v. Consolidated Edison Co. of N.Y., Inc. , 34 N.Y. 2d 88, 356 N.Y.S. 2d 249, 312 N.E. 2d 445, 449 (Ct. App. (1974)), an employee's right to a pension is governed by the provisions of the specific pension plan under which he seeks benefits. See Hadden v. Consolidated Edison Co. of N.Y., Inc., supra; Gitelson v. DuPont , 17 N.Y. 2d 46, 268 N.Y.S. 2d 11, 215 N.E. 2d 336, 337-338 (Ct. App. 1966); Fernekes v. CMP Industries, Inc. , 13 N.Y. 2d 217, 246 N.Y.S. 2d 201, 195 N.E. 2d 884, 887 (Ct. App. 1963). See also, Alt v. Long Island R.R. Company , 81 Misc. 2d 99, 365 N.Y.S. 2d 480, 483-484 (Sup. Ct. 1975), aff'd 54 A.D. 2d 724, 387 N.Y.S. 2d 610 (App. Div. 1976). New Jersey is in accord with this view. Thus, in Stopford v. Boonton Molding Co., Inc. , 56 N.J. 169 (1970), our Supreme Court, in discussing the rights of an employee onder a contributory pension plan, stated:
The contributory pension plan involved here is not a mere gratuity, the benefits of which depend upon the bounty of the employer. It is an offer to pay a pension upon compliance by the employee with terms and conditions ...