This action is proceeding as a class action pursuant to R. 4:32-1 et seq. , as mandated by Fiore v. Hudson Cty. Employees Pension Comm'n , 151 N.J. Super. 524, 529 (App. Div. 1977).
Plaintiff and the class of persons which he represents were or are receiving pensions from the County of Hudson (county). The Hudson County Employees Pension Commission (Commission) deducted 3% from their pension benefits until January 3, 1974 in order to permit the widows and dependents to continue to receive the pension after an employee's death. On each pension application appeared the following statement: "If retired, I desire that 3% be deducted from my pension for the benefit of my dependents." If a person failed to complete this portion of the application, the secretary of the Commission informed the individual that the 3% deduction was mandatory.
A review of each application would be conducted and if the prospective pensioner had a wife but failed to indicate on his application that he desired the deduction to be made, the secretary would call the employee back to his office and inform him that an affirmative response was required in order to provide pension benefits for his dependents. Any further inquiry would result in the same response from the Commission. Plaintiff has pointed out that this demand was not an idle threat, for if in fact a pension application slipped through without the appropriate deductions so indicated, no pension benefits would be distributed until the widow paid the amount that the employee would have contributed had such deduction been made.
Both plaintiff and defendant now move for partial summary judgment on the issue of the liability of the county for deducting the 3% from the pension. R. 4:46. The parties have agreed that the matter is ripe for such a judgment.
This case presents a novel issue concerning the authority of the Commission to make deductions from a pension fund. The statute in effect at the time that these deductions were made was N.J.S.A. 43:10-7 (1962). This section was
amended in 1973 to be effective upon its adoption by county resolution, but the amendment applies prospectively and therefore does not apply to the reopening of pension cases to discover improprieties in the administration of the county employees' pension fund. Skulski v. Nolan , 68 N.J. 179, 202 (1975). Prior to the amendment this section provided in pertinent part:
a. The county treasurer shall deduct from every payment of salary to any county employee who is benefited by this article and pay to the fund, three per cent of the amount of the salary. [Emphasis added]
The statute clearly speaks in terms of deducting funds from salary. In this case the County has deducted an additional 3% from the pension in order to provide for the widow and dependents. The question is raised as to whether the county may employ other means to assure funding for pension payments to widows and dependents.
To resolve this issue the court looks to the provisions of the pension fund act for specific authorization. Firstly, N.J.S.A. 43:10-5 (repealed and superceded in 1973 by N.J.S.A. 43:10-5.3) and N.J.S.A. 43:10-6 (amended 1973) provide for payment of the pension distribution over to the widow or dependent children upon the death of a pensioner. Under these two statutes the prerequisite to receiving the pension benefits is the payment of the required contributions by the pensioner. No additional contributions are mandated in order for the widow or children to receive pension benefits.
Secondly, an examination of N.J.S.A. 43:10-11, the section governing the powers and duties of a pension commission, reveals that a commission has "control and management of the funds and of the retirement of the county employees, and may make all necessary rules and regulations regarding the same not inconsistent ...