De Nike v. Board of Trustees of State Emp. Retirement System
Decision Date | 27 June 1960 |
Docket Number | No. 780,780 |
Parties | Mattie DE NIKE, Plaintiff-Appellant, v. BOARD OF TRUSTEES OF THE STATE EMPLOYEES' RETIREMENT SYSTEM of New Jersey, Defendant-Respondent. |
Court | New Jersey Superior Court — Appellate Division |
Franklin W. Kielb, Flemington, for plaintiff-appellant.
Lee A. Holley, Deputy Atty. Gen., for defendant-respondent (David D. Furman, Atty. Gen., attorney).
Before Judges PRICE, GAULKIN and FOLEY.
The opinion of the court was delivered by
GAULKIN, J.A.D.
Plaintiff appeals from a judgment of the Law Division which denied her motion for summary judgment and dismissed her complaint 'on the ground of the lack of jurisdiction.'
The complaint alleges that plaintiff's deceased husband, William E. De Nike, 'On or about January 20, 1955 pursuant to R.S. 43:15A--47 * * * filed a duly attested application for retirement * * * as Borough Clerk of the Borough of East Rutherford, being a veteran who had attained the age of 62 years * * * under Option 1 with benefits which may be due and payable after his death to be paid to * * * Mrs. Mattie De Nike, wife'; the application requested retirement as of March 1, 1955, and on March 15, 1955 it was approved by the defendant, effective as of March 1; Mr. De Nike died on April 4, 1955 without receiving any payments under the pension system; this, plaintiff claims, left a balance of approximately $29,000 due her, which she demands.
It does not appear from the appendix submitted to us that either the caption or the backer of the complaint included the words 'in lieu of Prerogative Writs,' as required by R.R. 4:88--3, or that plaintiff considered the complaint anything other than an action at law for a money judgment when it was filed. However, when the defendant's answer alleged that 'this action is an appeal from a determination of an administrative agency and pursuant to R.R. 4:88--1 should have been instituted in the Appellate Division,' plaintiff replied that the complaint 'is one in lieu of mandamus.'
In addition to raising the jurisdictional question, defendant's answer admits Mr. De Nike's retirement and death, but denies that the sum claimed by plaintiff is due, because (emphasis ours):
Retirement System of New Jersey, Wherein he elected to retire under option 1 of N.J.S.A. 43:15A--50.
Retirement System and thereupon Executed a new form whereby he asked to be retired without option and to receive maximum allowance, which allowance would cease at his death pursuant to N.J.S.A. 43:15A--50.
Plaintiff contends that the decedent's alleged request of March 8, that he be retired without option and to receive maximum allowance, was inoperative and did not affect his previous written election to retire under Option 1 because, to quote the reply, 'R.S. 43:15A--47 * * * provides that the application be 'duly attested' and the deceased, William E. De Nike had not submitted a duly attested application on March 8, 1955.'
Each side moved for summary judgment. On the return day of the motions the trial judge said, Accordingly, he entered the judgment of dismissal.
Plaintiff argues (1) that the complaint was the equivalent of one for Mandamus under the old practice and that the Law Division had jurisdiction and should have granted summary judgment in her favor; (2) even if the Law Division did not have jurisdiction it should not have dismissed the complaint but transferred the case to the Appellate Division under R.R. 1:27D and Central R.R. Co. v. Neeld, 26 N.J. 172, 184, 139 A.2d 110 (1958); and (3) in any event, since the case is now here, we should decide it on the merits in her favor. Cf. Bruder v. Teachers' Pension & Annuity Fund, 27 N.J. 266, 273, 142 A.2d 225 (1958).
The defendant answers that (1) the Law Division properly dismissed the complaint for lack of jurisdiction; (2) transfer under R.R. 1:27D was not possible because the action had not been instituted in the Law Division within the time limited by R.R. 1:3--1(b) for appeals to the Appellate Division (Central R.R. Co. v. Neeld, supra, 26 N.J. at p. 184, 139 A.2d at p. 117) or even within the time allowed for the institution of in lieu actions in the Law Division, (R.R. 4:88--15); and (3) in any event defendant is entitled to prevail on the merits.
Mr. De Nike retired under N.J.S.A. 43:15A--47, which provides (emphasis ours):
It is not disputed that on January 20, 1955 Mr. De Nike completed and signed an application for retirement upon a printed form furnished by defendant. (This application is marked 'Exhibit A' in defendant's appendix and hereafter will be so called.) He acknowledged it before a notary in Bergen County, who so certified in the space provided in the form for that purpose.
Defendant admits that by Exhibit A Mr. De Nike elected to receive his benefits under Option 1 of N.J.S.A. 43:15A--50, the pertinent parts of which are as follows:
'* * * at the time of his retirement any member may elect to receive his benefits in a retirement allowance payable throughout life, or he may on retirement elect to receive the actuarial equivalent at the time of his annuity, his pension or his retirement allowance, in a lesser annuity or a lesser pension, or a lesser retirement allowance, payable throughout life, with the provision that:
'No optional selection shall be effective in case a beneficiary dies within 30 days after retirement and such a beneficiary shall be considered an active member at the time of death until the first payment on account of any benefit becomes normally due.'
The only affidavit submitted to the trial court by the defendant upon the motion for summary judgment was one signed by Mr. Borden, its secretary, which said:
Retirement System and thereupon executed a new form whereby he asked to be retired without option and to receive maximum allowance, which allowance would cease at his death pursuant to N.J.S.A. 43:15A--50. A copy of this application is attached.
Defendant has submitted to us an affidavit of Gladys H. Cleary, assistant secretary of the defendant, which was not submitted to the trial court. We pass the question of the propriety of such action. Cf. R.R. 4:88--9; Metropolitan Motors v. State, 39 N.J.Super. 208, 120 A.2d 776 (App.Div.1956). The affidavit says (emphasis ours):
Retirement System and was referred to me for interview concerning his retirement and his selection of pension benefits.
'5. During the course of said interview I explained in detail to Mr. DeNike the benefits payable under the maximum retirement allowance and the Option 1 allowance, and I also explained to him that under the maximum life benfit plan all payments would cease upon his death with the exception of 3/16ths of his annual salary payable as insurance.
'6. At Mr. DeNike's request I prepared a written paper, Identical to his original notarized application for retirement with the exception that on this new document maximum retirement was indicated as his selection. Mr. DeNike then drew a line through the statement 'I wish to retire under Option 1 ( ) 2 ( ) 3 ( )' and signed said document in his own hand and at the bottom of said document wrote in 'Mrs. Mattie DeNike, wife' under a paragraph typed on the document requesting the member to indicate his beneficiary of the 3/16ths Insurance. (Said amended document annexed hereto as Exhibit C).
An examination of Exhibit C (the paper signed by Mr. DeNike on March 8) reveals the following:
1. It is on the same printed form as Exhibit A, and copies almost everything that appears in Exhibit A, Including the date of January 20, 1955, and the acknowledgement which had been taken on January 25, 1955 by the notary in Bergen county!
2. Exhibit C is not attested or acknowledged, even though...
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