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Brunt v. Board of Trustees

Superior Court of New Jersey, Appellate Division

June 18, 2018

WILLIAM F. BRUNT, JR., Plaintiff-Respondent,
v.
BOARD OF TRUSTEES, POLICE & FIREMEN'S RETIREMENT SYSTEM IN THE DIVISION OF PENSIONS & BENEFITS, STATE OF NEW JERSEY; HANK SCHWEDES; CHERYL CHIANESE and BERNARDINE BROZENA, Defendants-Respondents, and THE TOWNSHIP OF MIDDLETOWN IN THE COUNTY OF MONMOUTH; and HELEN ALFANO, Defendants-Appellants. WILLIAM F. BRUNT, JR., Plaintiff-Respondent,
v.
BOARD OF TRUSTEES, POLICE & FIREMEN'S RETIREMENT SYSTEM IN THE DIVISION OF PENSIONS & BENEFITS, STATE OF NEW JERSEY; HANK SCHWEDES; CHERYL CHIANESE and BERNARDINE BROZENA, Defendants-Appellants, and THE TOWNSHIP OF MIDDLETOWN IN THE COUNTY OF MONMOUTH; and HELEN ALFANO, Defendants-Respondents.

          Argued April 9, 2018

          Reargued telephonically May 31, 2018 [1]

          On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1573-16.

          Michael L. Collins argued the cause for Township of Middletown and Helen Alfano, appellants in A-1406-16 and respondents in A-1457-16 (Archer & Greiner, PC, attorneys; Brian M. Nelson, of counsel; Kira S. Dabby and Michael L. Collins, on the brief).

          Jeffrey S. Ignatowitz, Deputy Attorney General, argued the cause for Board of Trustees, Police and Firemen's Retirement System, appellant in 1457-16 and respondent in A-1406-16 (Gurbir S. Grewal, Attorney General, attorney; Daniel F. Thornton, Deputy Attorney General, on the brief).

          Larry S. Loigman argued the cause for respondent William F. Brunt., Jr.

          Before Judges Sabatino, Ostrer and Rose.

          OPINION

          ROSE, J.S.C. (temporarily assigned).

         The issue in these back-to-back appeals, which we consolidate for purposes of this opinion, is whether the trial court erred in granting counsel fees to plaintiff, William F. Brunt, Jr., who prevailed in a Law Division action to enforce an agency decision. Because we adhere to the so-called American Rule, requiring litigants to bear their own litigation costs regardless of who prevails, we reverse.

         We summarize the facts and procedural history most pertinent to this appeal. In June 2014, plaintiff retired from the Township of Middletown ("Middletown") Police Department while serving as interim deputy chief. When plaintiff's pension calculation failed to include his increased deputy chief salary, plaintiff successfully challenged the error before an administrative law judge ("ALJ"). Middletown was not aware of the hearing and, as such, did not participate. The Board of Trustees of the Police and Firemen's Retirement System ("Board") subsequently adopted the ALJ's decision.

         However, by correspondence dated May 2, 2016, Cheryl Chianese, the Board's Retirement and Beneficiary Services Bureau Chief, advised plaintiff's counsel that additional adjustments to plaintiff's final salary required an updated certification from Middletown, so that the Board could process his recalculated pension benefits. Chianese's letter stated, in pertinent part:

As I previously advised in 2014, your concerns should have been addressed directly to Middletown Township before filing an appeal with the Board of Trustees. We cannot comment on behalf of [plaintiff's] employer and can only calculate a benefit based on the salary that is remitted to the Division of Pensions and Benefits [("Division")] by the employer.
A review of [plaintiff's] membership file has revealed there have not been additional pension contributions, or salary reported to the Division as of today's date. If you have knowledge that the employer will be remitting retroactive salary information, we will be happy to recalculate the benefit.

         Two days later, plaintiff filed an order to show cause and complaint in lieu of prerogative writs in the Law Division, naming as defendants the Board and its agents or employees, Hank Schwedes, Bernardine Brozena, and Chianese ("State Defendants"), and Middletown and its payroll supervisor, Helen Alfano ("Middletown Defendants").In essence, plaintiff sought enforcement of the Board's ...


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