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Duvin v. State

Decided: May 9, 1978.

FRANK F. DUVIN, APPELLANT-RESPONDENT,
v.
STATE OF NEW JERSEY, DEPARTMENT OF THE TREASURY, PUBLIC EMPLOYEES' RETIREMENT SYSTEM, RESPONDENT-PETITIONER



On certification to the Superior Court, Appellate Division, whose opinion is reported at 149 N.J. Super. 289 (1977).

For reversal and remandment -- Chief Justice Hughes, Justices Sullivan, Pashman, Clifford, Schreiber and Handler and Judge Conford. For affirmance -- None. The opinion of the court was delivered by Sullivan, J.

Sullivan

This is a pension case. Respondent Frank F. Duvin commenced employment with the City of Trenton, Department of Public Safety, in December 1950. He became a member of the Public Employees' Retirement System (PERS) in January 1955, receiving retirement credits for his prior years of employment with the City.

In November 1975, respondent filed an application with PERS for an early retirement allowance pursuant to N.J.S.A. 43:15A-41. His application, after processing, was approved by the Board of Trustees (Board) and he was retired effective January 1, 1976.

On July 16, 1976 respondent sought to file an application with PERS seeking accidental disability retirement pursuant to N.J.S.A. 43:15A-43 in lieu of the early retirement allowance he was then receiving.*fn1 By letter dated August 25, 1976, the Board notified respondent that it was affirming the administrative determination which denied the eligibility of respondent to file for accidental disability retirement. The basis for the determination was that respondent had been retired since January 1, 1976 and was no

longer an active member of PERS "which is required for eligibility to file for a retirement benefit."

The Board gave no consideration to the question of whether it could or should, for good cause shown, reopen its previous grant of early retirement allowance to respondent and permit him to file for accidental disability retirement.

On appeal by respondent, the Appellate Division reversed. 149 N.J. Super. 289 (1977). It held that respondent's July 16, 1976 application was filed while he was still a statutory member of PERS since it was filed within two years of his discontinuance of service. The Appellate Division focused on N.J.S.A. 43:15A-7(e) which provides:

e. Membership of any person in the retirement system shall cease if he shall discontinue his service for more than 2 consecutive years.

In substance, the Appellate Division ruled that by virtue of N.J.S.A. 43A:15A-7(e), respondent's membership in PERS continued for two years after he discontinued his service. It therefore directed the Board to accept respondent's application for accidental disability retirement and to consider such application on the merits.

This Court granted certification, 75 N.J. 520 (1977), to consider the contention of the Division of Pensions, that the Appellate Division ruling that membership in the retirement system continued for up to two years after retirement was ruinous to the orderly administration of all State-administered retirement systems.

We conclude that the legislative plan as set forth in the statute is that membership in PERS terminates upon retirement. For example, N.J.S.A. 43:15A-57.2 provides for re-enrollment of a "former member" of the retirement system, retired for any cause other than disability, if such person becomes employed again in a position which makes him eligible to be a member of the retirement system. In such case, "his ...


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