On appeal from the Division of Pensions, Department of Treasury.
Dreier, Brochin and Kleiner. The opinion of the court was delivered by Kleiner, J.s.c. (temporarily assigned).
[271 NJSuper Page 507] Claimant Stephen Dobron appeals a final decision of the Police and Firemen's Retirement System (PFRS) which denied him all retirement benefits but ordered the return to him of all contributions paid to the retirement system.
Dobron, who was born August 25, 1934, commenced his public employment as a Senior Corrections Officer at the Youth Reception and Correction Center in Chesterfield Township on December 30, 1967, and was enrolled in Public Employees' Retirement System (PERS). Dobron was later enrolled in PFRS by interfund transfer during the December 23, 1973, to January 4, 1974, pay period.
In 1984, Dobron, then age fifty, was named as a defendant in a three-count indictment charging him with criminal acts arising from his position as a lieutenant assigned to a correctional facility. As of that date, he had served sixteen years and five months as a public employee. His last contribution to the pension system was at the Conclusion of the third quarter of 1984. On October 22, 1985, Dobron was found guilty, after a jury trial, of all counts of the indictment. He was sentenced to a custodial term of three years imprisonment. His conviction was affirmed on appeal but his sentence was modified to a term of nine months.*fn1 The imposition of sentence as a matter of law, N.J.S.A. 2C:51-2a(2), also resulted in Dobron's loss of employment as a public employee, State v. Pitman, 201 N.J. Super. 21, 492 A.2d 680 (1985); State v. Musto, 188 N.J. Super. 106, 456 A.2d 114 (1983).
On February 17, 1989, Dobron filed an application for a service retirement allowance effective September 1, 1989, the first day of the month following his fifty-fifth birthday. This application was denied on December 3, 1990 in a written communication stating:
The board noted that your last contribution to the PFRS was for the third quarter of 1984. Since you did not attain the age of 55 until August 25, 1989, after more than two years of inactivity in your account, the board determined that you do not qualify for Service retirement benefits. The board then considered the matter under the Deferred retirement provisions of the statute, N.J.S.A. 43:16-11.2, and found you to be ineligible for deferred retirement benefits inasmuch as you were separated from your employment "by removal for cause on charges of misconduct or delinquency."
Claimant appealed this decision and the appeal was referred to the Office of Administrative Law as a contested matter. The Administrative Law Judge affirmed the denial. That affirmance became a final decision resulting in this appeal.
The crux of claimant's argument administratively and on appeal is his contention that N.J.S.A. 43:16A-11.2 is unconstitutional facially and as applied in that it denies equal protection and due process by automatic forfeiture of pension benefits based on age.
In support of this contention, Dobron points to the Disposition of a pension application filed by his former co-employee, one John Adams, who was his co-defendant under the same indictment and who also was convicted at the same time. Adams was fifty-five years of age when he applied for a service retirement allowance which was granted after a consideration by the pension board of the eleven-factor balancing test articulated in Uricoli v. Police & Fire. Retirem. Sys., 91 N.J. 62, 449 A.2d 1267 (1982). Dobron argues that the only difference between his application which was denied and Adams' application which was granted was the respective age of each applicant and that the disparity in results based upon age distinctions under the applicable statutes facially and as applied violates his constitutionally guaranteed rights. We disagree and accordingly we affirm the decision of the PFRS Board of Trustees.
We conclude that the alleged disparate treatment of Dobron and Adams as to pension entitlement was not predicated upon age differences but upon valid distinctions between specified public employees in service as of the date of retirement and those employees who leave office prior to ...