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Galvano v. Board of Trustees of Public Employees'' Retirement System

Decided: June 1, 1988.

VINCENT L. GALVANO, PETITIONER-APPELLANT,
v.
BOARD OF TRUSTEES OF THE PUBLIC EMPLOYEES' RETIREMENT SYSTEM, RESPONDENT-RESPONDENT



On appeal from final determination of the Board of Trustees of the Public Employees' Retirement System.

Deighan, R. S. Cohen and Landau. The opinion of the court was delivered by Landau, J.A.D.

Landau

[225 NJSuper Page 389] This is an appeal by Vincent L. Galvano (Galvano) from a final determination of the Board of Trustees of the Public

Employees' Retirement System (Board) denying his application for veteran's retirement benefits under N.J.S.A. 43:15A-61(b).

Galvano, a Township of Woodbridge truck driver, applied for veteran's retirement on July 24, 1984 (filed August 13, 1984) to be effective on October 1, 1984. On September 19, 1984, the Board approved his application for veteran's retirement as requested. However, on October 15, 1984, the Division of Pensions notified Galvano, who was then 61 years old, that he was ineligible for veteran's retirement because he had not attained his 62nd year as of October 1, 1984. The record does not disclose that the Board participated in this administrative modification of its action. Galvano was advised in that letter that his retirement was instead being processed as a "service" retirement. No other alternatives were communicated to him. He was also informed of the monthly amounts which would be payable under a service retirement, depending upon the option selected. Galvano selected one of the options, checking the box marked "veteran" in the form section which inquired as to the type of pension involved.

In order to change his option selection, Galvano filed again, specifically for veteran's retirement benefits effective October 1, 1984. The application was processed as a service retirement and affirmed as such by the Board, without reference to its earlier approval of veteran's retirement, and without rejection of the request for veteran's retirement benefits.

It is not disputed that if Galvano had been actively employed by Woodbridge until June 5, 1985, his veteran's status and years of employment would have qualified him for a veteran's pension on his 62nd birthday, thus providing pension benefits substantially higher than those paid for the ordinary service retirement he now receives.

Galvano's attorney asked in 1985 that he be permitted to "reverse the mistake that Mr. Galvano made when he accepted option two of the service retirement benefits" in order to seek veteran's benefits as of June 5, 1985, Galvano's 62nd birthday.

The attorney urged that Galvano ". . . really had no intention to seek service retirement benefits . . ." when he applied for veteran's retirement benefits in 1984.

The chief of the bureau of retirement replied to the attorney's letter, essentially saying that inasmuch as Galvano was short of attaining age 62 when his retirement became effective the Board could not "cancel the retirement once it has been processed." In response to a further letter, the Board's secretary formally denied the request for veteran's retirement benefits, because of failure to comply with N.J.S.A. 43:15A-61(b), and advised as to appeal rights, leading to the proceedings and decision under review.

During hearings before an Administrative Law Judge (ALJ), Galvano asserted, without contradiction or objection, that he had been told by the mayor of Woodbridge and by his garage supervisor that he could continue working, if he desired, doing light duties as a watchman in the garage. Specifically, he said "I had the option of going back. I was told by DeMarino and Jud Dello and Wally Bowen, being I had so many years of service, they will carry me, they will put me back to work. If I would have known eight months was involved, I would have ran back to the garage. I would be a fool to retire at 400 when I could go to 800."

Galvano also stated that as a matter of routine, he could have made application for two six month leaves of absence which would have been granted. He testified "I go before the town council and I apply for six months leave of absence, they okay it. I have never yet heard of a case where they deny it. You are on the books but not collecting no pay, you go for six months. Should you need another six months, you reapply to the town council, they okay it. After the twelve month, that's it. You either go back on the payroll . . . or you resign . . . That's it."

Galvano also testified that he was told by Woodbridge officials that he could retire with ...


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