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In the Matter of Barbara Thomas

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 21, 2011

IN THE MATTER OF BARBARA THOMAS, APPELLANT.

On appeal from a Final Determination of the Board of Trustees, Teachers' Pension and Annuity Fund.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 5, 2010 - Decided Before Judges Wefing and Payne.

Barbara Thomas, a former teacher, appeals from a final decision of the Teachers' Pension and Annuity Fund (TPAF) denying her an ordinary disability pension on the ground that she lacked the requisite ten years of New Jersey service and declining to refer the matter to the Office of Administrative Law for a hearing. On appeal, Thomas concedes that a legal basis for the TPAF's action exists, but she argues that principles of equitable estoppel should have been applied so as to award her the disability pension, and that she was entitled to a hearing in the matter. We affirm.

In 2000, Thomas was hired by the Asbury Park school system. In 2002 and 2003, she purchased from the Division of Pension and Benefits ten years of service credit for out-of-state service. The purchase quotations sent to Thomas on September 19, 2002, October 23, 2002 and March 3, 2003 stated: "This service may not be used to qualify for Disability Retirement."

On September 1, 2003, Thomas accepted a position in Wall Township as a learning consultant. In 2007, Thomas became ill, receiving one month of paid sick leave from September 4, 2007 to October 1, 2007 and unpaid leave thereafter through June 20, 2008. She resigned from her employment, effective July 1, 2008.

On June 16, 2008, Thomas applied for an ordinary disability retirement pension, effective on July 1, 2008, claiming a total permanent disability as the result of a combination of medical conditions. The fact of her disability was attested to by her treating physicians, and it was confirmed by an examining physician retained by the TPAF in a letter dated February 6, 2009. Thomas did not personally contact the TPAF at the time of her application and received no advice from it.

On August 19, 2008, an employer's certification was submitted by Wall Township Public Schools, and on November 14, 2008, that entity confirmed that there was no position in the district that Thomas was able to fill, having been out of work for the entire 2007-2008 school year.

On March 5, 2009, Thomas's application for an ordinary disability pension was approved, but on March 17, 2009, before the payment of any benefits, that approval was rescinded on the ground of insufficient in-state service. The letter of rescission stated:

In order for a member to qualify for . . . ordinary disability benefits, they must have at least 10 or more years of New Jersey service credit in the pension system. A review of your account reveals that the 120 months of out-of-state time you purchased cannot be used to qualify for an ordinary disability retirement. I have enclosed copies of NJAC 17:3-5.5 and NJSA 18A:66-39(b), for your reference.

The letter noted that, at the time, Thomas had seven years and four months of New Jersey service credit. However, it concluded by stating: "With your age and service credit, you do qualify for Deferred retirement benefits, which would become effective July 1, 2012." An application for such benefits was enclosed.

On April 13, 2009, Thomas sought to rescind her resignation and to reinstate her employment "under some mutually agreed upon accommodations." Her request was not granted. On April 21, 2009, the Superintendent of Schools wrote that the district was not in a position to approve Thomas's request because of severe budgetary constraints. The letter noted that, as a consequence, the Board of Education had needed to eliminate twenty-three positions in the 2008-2009 budget year, and sixty positions in the following year in order to comply with the State-mandated four-percent tax cap.

On May 29, 2009, Thomas appealed the decision denying her an ordinary disability pension to the Board of the TPAF. However, her appeal was denied at the Board's meeting of July 2, 2009. Thomas's attorney was informed of that denial in a letter dated July 6, 2009 that addressed Thomas's ineligibility pursuant to statute and administrative regulation as the result of her lack of ten years of New Jersey service. Additionally, the Board denied Thomas's estoppel argument, determining that she had not relied on any Board action in determining to retire.

Thereafter, Thomas requested an administrative hearing. However, by letter dated September 4, 2009, that request was denied. A final administrative determination, dated October 2, 2009, was then issued. In that determination, the Board again rejected Thomas's estoppel argument, stating: "Clearly, Ms. Thomas did not rely upon any action of the Board and/or Division to her detriment." The Board also rejected Thomas's argument that, if the TPAF had acted more promptly, she would have been able to retract her resignation and to withdraw her pension application. In this regard, the Board stated: "[I]t is important to note that at its meeting of March 5, 2009, the TPAF Board determined that Ms. Thomas was totally and permanently incapacitated from the performance of her duties as a Learning Consultant with the Wall Township Board of Education. Unfortunately, returning to work at that point in time was not an option for her in light of her conceded disability."

This appeal followed.

There is no question that Thomas lacked the New Jersey service credits that would have qualified her for an ordinary disability pension. N.J.S.A. 18A:66-39(b) requires that a person under the age of sixty, as Thomas was, have ten or more years of credit for New Jersey service, as well as a qualifying disability, in order to obtain an ordinary disability pension. Thomas had seven years and four months of service credit. Although she had purchased ten years of service credit based upon her out-of-state teaching experience, N.J.A.C. 17:3-5.5(a)5 provides: "Pursuant to N.J.S.A. 18A:66-39(b) this service cannot be used to qualify for an ordinary disability retirement."

Thomas argues on appeal that the TPAF should be equitably estopped from denying her disability pension application because she was not advised of the defect in her application until approximately nine months after it was filed. According to Thomas, "[t]his effectively deprived her of alternative opportunities for a return to work with accommodation or for a continued leave of absence."

The Court has held that

"Estoppel is an equitable doctrine, founded in the fundamental duty of fair dealing imposed by law." Casamasino v. City of Jersey City, 158 N.J. 333, 354 (1999). The doctrine is designed to prevent injustice by not permitting a party to repudiate a course of action on which another party has relied to his detriment. Mattia v. Northern Ins. Co. of New York, 35 N.J. Super. 503, 510 (App. Div. 1955). The doctrine is invoked in "the interests of justice, morality and common fairness." Palatine I v. Planning Bd., 133 N.J. 546, 560 (1993) (quoting Gruber v. Mayor of Raritan Township, 39 N.J. 1, 13 (1962)). Estoppel, unlike waiver, requires the reliance of one party on another. Country Chevrolet v. [Twp. of N. Brunswick Planning Bd.], 190 N.J. Super. [376], 380 [(App. Div. 1983)]. In short, to establish equitable estoppel, plaintiffs must show that defendant engaged in conduct, either intentionally or under circumstances that induced reliance, and that plaintiffs acted or changed their position to their detriment. Miller v. Miller, 97 N.J. 154, 163 (1984).

The doctrine of equitable estoppel is rarely invoked against a government entity, but can be applied to prevent a manifest injustice. Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186 N.J. 5, 20 (2006) (citing Casamasino v. City of Jersey City, 158 N.J. 333, 354 (1999) (citing County of Morris v. Fauver, 153 N.J. 80, 104 (1998); Vogt v. Borough of Belmar, 14 N.J. 195, 205 (1954)).

After carefully reviewing the record in this matter, we find the doctrine of equitable estoppel to be inapplicable to the facts presented. At the time that she purchased service credits, Thomas was informed that such credits could not be utilized to qualify her for an ordinary disability pension. Thereafter, Thomas made no personal contact with the TPAF, but instead, voluntarily submitted her resignation at about the same time that she applied for disability pension benefits. While reliance on a governmental entity's advice may provide grounds for the application of principles of estoppel, Sroczynski v. Milek, 197 N.J. 36, 62 (2007), in this case there is no evidence that Thomas's determination to resign was in any manner influenced by representations made to her by an employee of the TPAF. Thus, detrimental reliance has not been demonstrated.

Further, there is no evidence that, if the TPAF had acted more quickly, Thomas would have been able to regain her teaching position. The record indicates that she had missed the entire 2007-2008 school year as the result of illness that was well-documented, severe, and incurable. In November 2008, Wall Township had informed the TPAF that there were no positions in the district that Thomas was able to fill. Further, Thomas was found by her personal treating physicians, the TPAF's examining physician and the TPAF to be totally and permanently disabled. As a consequence a return to employment would not have been possible. Moreover, a continued unpaid leave of absence would have been of no benefit to Thomas, since she could not earn New Jersey service credits during such an absence. As a consequence, we reject Thomas's arguments.

As a final matter, we also reject Thomas's appeal from the Board's denial of a hearing in the Office of Administrative Law. The material facts of this matter were not contested, and for that reason, a hearing would not have been of any benefit.

Affirmed.

20110121

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