On appeal from Board of Trustees of the Public Employees' Retirement System, #2-10-175500.
The opinion of the court was delivered by: Petrella, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Petrella, Yannotti and Bilder.
Petitioner George Harris appeals the decision of the Board of Trustees of the Public Employees' Retirement System (Board) denying his request to revise his deceased wife Nancy A. Harris's (decedent) pension option choice from the maximum allowance she had initially selected to the 100% beneficiary option, which would allow Harris to collect her pension after her death, less certain adjustments.
On appeal, Harris argues: the Board's final administrative determination denying his request to reform decedent's pension choice was arbitrary, unreasonable, not based on credible evidence and an abuse of its discretion because of the sudden onset of decedent's catastrophic illness during the critical thirty-day period in which changes to her pension option could be made.
The facts may be briefly stated. On July 19, 2001, decedent applied for early retirement from her position as an Assistant Criminal Division Manager for the Superior Court of New Jersey. She was originally employed on September 1, 1967, and had accumulated over thirty-four years of service credit in the Public Employees' Retirement System (PERS). In her application, decedent chose a retirement date of November 1, 2001, and elected the maximum monthly allowance without exercising any option.
Shortly thereafter, decedent received a notice dated July 21, which was sent to all pending retirees, announcing a new law, P.L. 2001, c. 120, which added new pension payment options that would allow levels of increased lifetime pension to a retiree's beneficiary if the retiree predeceased the beneficiary. In a letter dated July 23, 2001, Harris was advised by the Retirement Bureau that his wife had selected the maximum retirement allowance and that:
Under this choice, the monthly allowance is payable for the lifetime of the member only.
Therefore, you will not receive any pension payments in the event of the death of your spouse.
The Board approved decedent's retirement application at its August 15, 2001 meeting. In a letter notifying decedent of its acceptance of her early retirement,*fn1 the Bureau of Retirements advised decedent that she had selected the maximum retirement option and she had thirty days after either (A) the effective date of her retirement, or (B) the date her retirement was approved by the Board of Trustees, whichever was the later date, to make any changes to her retirement. Because the effective date of her retirement was November 1, 2001, decedent had until December 1, 2001 to change the retirement option she had chosen.
On November 6, 2001, decedent had an X-ray of her chest, which revealed a mass in her left lung. Decedent previously thought she had bronchitis. In the meantime, on November 9, 2001, she completed and signed an authorization from the Division of Pensions and Benefits (Division) for direct deposit of her retirement benefit payments. On November 14, 2001, decedent received the results of a CT scan revealing a four centimeter tumor in the lung. Decedent received a definitive diagnosis of lung cancer on November 20, 2001. A November 28, 2001 CT scan confirmed that the cancer had metastasized to the bones in her hip, causing extreme deterioration of the hip, and decedent was informed that there was nothing that could be done for her cancer. On November 30, 2001, decedent signed her first pension check which was then deposited in her account. On December 5, 2001, decedent underwent an operation to place a pin in her hip to prevent breakage of the bone. After the surgery, decedent was never able to walk again. She was admitted to the hospital on January 15, 2002, where she died on February 4, 2002.
On January 20, 2002, decedent contacted her attorney and had her come to the hospital to execute a new will under which she made specific bequests of personal effects to certain relatives and family members. On February 3, 2002, decedent signed a statement of intention and authorization in front of two witnesses declaring her desire to have her retirement option changed to the 100% beneficiary option, and stating that the effects of her ...