On appeal from the decision of the Board of Trustees of the Public Employees' Retirement System, Agency Docket No. PERS 2-10-164635.
The opinion of the court was delivered by: Pre Curiam
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Fisher.
Anthony Catoggio (appellant) is the surviving spouse of Lois Catoggio, a member of the Public Employees Retirement System (PERS). When Mrs. Catoggio retired on March 1, 2000, she selected a pension option that called for her to receive a maximum allowance during her lifetime; that option precluded appellant's receipt of benefits following her death.*fn1 PERS complied with that request and paid Mrs. Catoggio the maximum monthly benefits until she died on July 19, 2005.
Following Mrs. Catoggio's death, appellant contacted the Division of Pensions and Benefits (the Division) and claimed an entitlement to survivor benefits. He asserted that Mrs. Catoggio meant to provide for him after her death and that her selection of the maximum allowance was a mistake. The Division rendered a thorough written decision, which closely examined all appellant's contentions. Citing the applicable statutes and regulations, as well as the undisputed fact that Mrs. Catoggio's pension application contained her selection of a maximum allowance during her lifetime, the Division rejected appellant's claim.
Appellant contested that determination, the matter was transmitted to the Office of Administrative Law, and an administrative law judge (ALJ) conducted a two-day hearing, during which he received the parties' stipulation of facts and joint exhibits. The ALJ also heard the testimony of the son of appellant and Mrs. Catoggio, as well as the testimony of Mrs. Catoggio's sister and sister-in-law, regarding Mrs. Catoggio's stated intentions. By way of a written decision, the ALJ concluded that regardless of what Mrs. Catoggio may have expressed to others about her intentions, she unambiguously requested that PERS pay her the maximum allowance of benefits, which precluded appellant's receipt of benefits upon her death. After receiving exceptions to the ALJ's decision, PERS adopted the ALJ's findings and conclusions by way of a final agency decision on August 21, 2008. Appellant thereafter filed this appeal, arguing that the final agency decision must be reversed because, among other things, PERS "failed to obtain [Mrs.] Catoggio's signature on the election of benefits form required by N.J.S.A. 43:15A-50(a)."
N.J.S.A. 43:15A-50a sets forth the manner in which a PERS member, such as Mrs. Catoggio, may select from among the various options available:
[W]henever a member of the Public Employees' Retirement System elects a retirement benefit which is payable for the life of the member only and terminating at his death, without refund of any kind to the spouse, the member shall be required, before electing that benefit, to sign a form stating that the member has elected that benefit, that the member understands that it is payable during the member's lifetime only and that no benefits will be payable to the member's spouse after death. The Division of Pensions, Department of the Treasury, shall notify the member's spouse if the member identifies the spouse on the form. Notification shall be by certified mail to the spouse's address as provided on the form by the member. . . . The notice shall advise the spouse that the retirement benefit chosen by the member is payable during the member's lifetime only and that no benefits, other than any applicable life insurance benefits, shall be payable to the beneficiary after the member's death.
Boiled down to its essentials, appellant argues that this statute unambiguously requires that a PERS member, before making an election of a maximum allowance, must sign a document expressing the member's "understand[ing] that it is payable during the member's lifetime only and that no benefits will be payable to the member's spouse after death." Ibid. He claims that Mrs. Catoggio signed no such document. We disagree.
The record contains Mrs. Catoggio's application for a retirement allowance, which consists of several pages. At the top of the first page, the member is directed by words set forth in bold print to "read the attached instructions carefully before completing this application." The instructions, which are part of the application, include a page bearing, in large print, the heading: "PENSION OPTIONS." Each of the options described on that page has its own heading, also in large print. The following description is provided under the heading "Maximum Allowance":
Under the Maximum Allowance you receive the highest retirement allowance available to you without providing pension benefits to a beneficiary. Upon your death, your pension benefits cease. If you are married and choose the Maximum Allowance, your spouse will be notified of your choice.
You may wish to provide benefits for a beneficiary by selecting one of the options described in the following paragraphs. Selecting an option will reduce your monthly retirement allowance. The amount of the reduction in your benefit depends upon which option you choose. It is important to keep in mind that your option selection is irrevocable (cannot be changed under any circumstances) once your retirement becomes due and payable. Due and payable is defined as 30 days after your retirement date or 30 days after your retirement has been approved by the board of trustees, whichever is the later date. [Footnote omitted.]
The statements in the first paragraph of these instructions mirror the statutory language upon which ...