SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1535-16T3

CHRISTINE MINSAVAGE for

DAVID MINSAVAGE (deceased),

Petitioner-Appellant,

v.

BOARD OF TRUSTEES, TEACHERS'

PENSION AND ANNUITY FUND,

Respondent-Respondent.

________________________________

Argued May 30, 2018 – Decided June 15, 2018

Before Judges Hoffman and Mayer.

On appeal from the Board of Trustees of the 

Teachers' Pension and Annuity Fund, Department 

of Treasury, TPAF No. 1-421704.

Daniel J. Zirrith argued the cause for 

appellant (Law Offices of Daniel J. Zirrith, 

LLC, attorneys; Daniel J. Zirrith, of counsel 

and on the briefs; Jeffrey J. Berezny, on the 

briefs).

Jeff S. Ignatowitz, Deputy Attorney General, 

argued the cause for respondent (Gurbir S. 

Grewal, Attorney General, attorney; Melissa H. 

Raksa, Assistant Attorney General, of counsel; 

Jeff S. Ignatowitz, Deputy Attorney General, 

on the brief).

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R. 1:36-3.
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PER CURIAM

Appellant Christine Minsavage sought to change the retirement 

option her deceased husband chose so she could receive survivor 

retirement benefits rather than reimbursement of her husband's 

pension contributions. Appellant now appeals from the November 

4, 2016 final decision of respondent, the Board of Trustees of the 

Teachers' Pension and Annuity Fund (Board), denying her request

to change the retirement option her husband selected. We affirm.

I

David Minsavage (decedent) worked for nearly twenty-five 

years at Hanover Park High School (school), beginning in 1990. In 

August 2014, decedent was diagnosed with terminal pancreatic 

cancer. 

In September 2014, decedent contacted the Division of 

Pensions and Benefits (Division) for assistance in setting up his 

member benefits online system (MBOS) account. Around October 

2014, decedent contacted the New Jersey Education Association 

(NJEA) to discuss his retirement options. Appellant certifies she 

and decedent notified NJEA of decedent's terminal cancer diagnosis 

at that time. According to appellant, the NJEA representative 

provided decedent with screen shots of a sample MBOS retirement 

application and instructed decedent on the options he should choose

by highlighting selections on the sample application; decedent 
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followed the NJEA representative's directions, and "on or about 

November 17, 2014," filed an application for early retirement.1 

Decedent continued working at the school until mid-December 

2014. On March 16, 2015, the school filed a certification of 

services and final salary retirement form, which indicated 

decedent would retire on July 1, 2015 — the date he would attain 

eligibility for early retirement, which requires twenty-five years 

of service. 

On April 9, 2015, decedent passed away after twenty-four 

years and ten months of service. Appellant notified the Division 

of her husband's passing the following day. On April 15, 2015, 

the school certified to the Division that decedent's last day of 

active service was April 8, 2015; thus, decedent passed away less 

than three months before attaining eligibility for early 

retirement.

On April 22, 2015, the Division wrote appellant notifying her 

of her entitled benefits, which included return of pension

contributions and a Group Life Insurance Benefit. Appellant 

 

1 Unaware decedent had previously filed his own application, in 

April 2015, appellant accessed decedent's MBOS account and filed 

a retirement application on his behalf. According to appellant's 

certification, she also relied upon an NJEA representative's 

instructions in selecting the early retirement option. She further 

certified no one advised either her or decedent about filing for 

ordinary disability. 
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contacted the Division in April and May inquiring into the letter's 

meaning and her benefit eligibility. Eventually, she learned she 

was only entitled to reimbursement of decedent's contributions

rather than survivor retirement benefits because decedent did not 

survive long enough to attain twenty-five years of service. 

Appellant wrote the Division and requested permission to 

change decedent's retirement application from early retirement to 

ordinary disability retirement. In her correspondence, she 

stated, "Had we known how sick my husband really was and how 

quickly the cancer would cause his death[,] we would have filed 

for a retirement benefit with a disability status." In response, 

the Division confirmed its determination that appellant was not 

entitled to survivor retirement benefits because decedent did not 

attain twenty-five years of service. 

Subsequently, with the assistance of counsel, appellant filed 

an appeal with the Board. In her appeal, she requested to "reopen, 

amend, modify, and/or change retroactively" decedent's retirement 

application, based on the following arguments: (1) decedent 

"lacked sufficient information to make an informed choice among 

his retirement options"; (2) decedent "was incapacitated by a 

combination of physical, psychological and emotional burdens that 

reasonably prevented him from making an informed decision"; (3) 

"there was a mutual mistake in his retirement selection based upon 
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the lack of information and the detrimental reliance on the 

specific instructions which did not conform to [decedent's] true 

intent, which was to maximize benefits for his wife and children"; 

(4) "the Board should exercise its discretionary authority to 

avoid an inequitable outcome affecting a retiree's innocent spouse 

and family"; and (5) appellant "acted with reasonable diligence 

in every step of the way in [decedent's] retirement situation 

before and after his death." 

The Board denied appellant's request, finding "no evidence 

in the record that [decedent] relied upon any advice given to him 

by the Division to his detriment," and denied culpability for the 

allegedly poor advice the NJEA provided. The Board also noted

decedent failed to attain twenty-five years of service, as required 

by N.J.S.A. 18A:66-113.1. Finally, it noted the Division was 

unaware of decedent's terminal illness at the time he submitted 

his retirement application, but stated decedent "could have 

availed himself to the Fact Sheets[,] which provide information 

regarding the different retirement types available and the 

eligibility criteria required for each selection or seek guidance 

from the Division." 

Appellant appealed the Board's findings, repeating her prior 

arguments and further contending there existed good cause to alter 

the application. The Board denied her appeal and issued the final 
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administrative determination under review. In its determination, 

the Board found "the statutes and regulations governing the 

[Teachers' Pension and Annuity Fund] do not permit the Board to 

grant [appellant's] request to change her husband's retirement 

type from [e]arly to [o]rdinary [d]isability retirement." It 

further found, "there was no evidence in the record that [decedent] 

relied upon any advice given to him by the Division to his 

detriment. In fact, you advised that [decedent] sought the advice 

and assistance of the NJEA, who actually filed his retirement 

application on his behalf."

It also repeated its prior reasoning, finding:

The Board cannot comment on any advice that 

was provided to [decedent] by the [NJEA]. The 

Division was unaware that [decedent] had 

serious health problems when he filed his 

application for retirement. However, the 

Board disagrees with your assertion the 

Division failed to provide him with sufficient 

information upon which he could have made an 

informed decision. Also, he could have 

availed himself to the Fact Sheets which 

provide information regarding the different 

retirement types available and the eligibility 

criteria required for each selection or seek 

guidance from the Division.

Finally, the Board again confirmed that decedent did not complete 

twenty-five years of service, rendering him ineligible for early 

retirement under N.J.S.A. 18A:66-113.1. Accordingly, it held it 
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was "without authority" to change decedent's retirement type from 

early retirement to ordinary disability. This appeal followed.

II

On appeal, appellant argues she demonstrated good cause for 

the Board to allow her to modify her husband's retirement 

application. She further argues that, at the time decedent 

completed his application, he lacked capacity due to severe stress 

associated with his terminal diagnosis. Finally, appellant argues

the Board's alleged failure to follow the requirements of N.J.A.C. 

17:3-6.3 invalidates her husband's retirement benefits selection, 

thereby allowing her to change the retirement application, and 

choose ordinary disability benefits. 

Our review of an administrative agency's decision is limited. 

In re Herrmann, 192 N.J. 19, 28 (2007). A reviewing court may 

reverse only those administrative decisions that are arbitrary, 

capricious, unreasonable, or violative of expressed or implicit 

legislative policies. In re Musick, 143 N.J. 206, 216 (1996); 

Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). 

Unfortunately for appellant, the Board's decision in the instant 

matter is neither arbitrary nor violative of any legislative 

policy. 

N.J.S.A. 18A:66-113.1 — early retirement — provides in 

pertinent part:
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Should a member resign after having 

established [twenty-five] years of creditable 

service before reaching age [sixty], he [or 

she] may elect 'early retirement,' provided 

that such election is communicated by such 

member to the retirement system by filing a 

written application, duly attested, stating at 

what time subsequent to the execution and 

filing thereof he [or she] desires to be 

retired. 

N.J.S.A. 18A:66-41 — ordinary disability allowances — provides:

A member upon retirement for ordinary 

disability shall receive a retirement 

allowance which shall consist of:

(a) an annuity which shall be the actuarial 

equivalent of his accumulated deductions at 

the time of his retirement together with 

regular interest after January 1, 1956; and

(b) a pension in the amount which, when added 

to the member's annuity, will provide a total 

retirement allowance of 1.64 [percent] of 

final compensation multiplied by his [or her] 

number of years of creditable service; and 

provided further, that in no event shall the 

allowance be less than 43.6 [percent] of final 

compensation.

Upon the receipt of proper proofs of the death 

of a member who has retired on an ordinary 

disability retirement allowance, there shall 

be paid to such member's beneficiary, an 

amount equal to [one-and-one-half] times the 

compensation upon which contributions by the 

member to the annuity savings fund were based 

in the last year of creditable service or in 

the year of the member's highest contractual 

salary, whichever is higher . . . .

We first reject appellant's claim that decedent's illness

incapacitated him by the time he completed his retirement 
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application. The record lacks support for this claim. Appellant 

conceded both she and decedent failed to appreciate the progression 

of her husband's illness when he completed the application. At 

that time, early retirement represented the most sensible option 

because it provided greater benefits both before and after 

decedent's scheduled retirement. Although we are sympathetic to 

appellant's loss, we cannot rely on her hindsight to permit her 

to alter or amend decedent's retirement application. Moreover, 

appellant's evidence supporting her incapacitation argument — a 

doctor's letter stating terminal illness causes mental and 

emotional distress — fell short of establishing incapacitation. 

Additionally, we are not persuaded by appellant's arguments 

regarding the Board's alleged failure to follow N.J.A.C. 17:3-

6.3(a), which states "a member shall have the right to withdraw, 

cancel, or change an application for retirement at any time before 

the member's retirement allowance becomes due and payable . . . ." 

The plain language of N.J.A.C. 17:3-6.3 indicates it only applies 

to a retirement application the Board has already approved. Here, 

decedent was ineligible for early retirement at the time he passed 

away; therefore, the Division never approved his application. 

Moreover, appellant cites inapposite case law to support her 

assertion.
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We conclude the record lacks evidence the Division knew of 

decedent's medical condition or that the Division provided 

decedent with any advice upon which he relied; instead, if decedent 

relied upon any representations, the record indicates they came

from the NJEA. Unfortunately, decedent passed away before 

attaining twenty-five years of service. Thus, the Board did not 

act arbitrarily or contrary to legislative intent in denying 

appellant the ability to amend or modify decedent's retirement 

application. 

Affirmed.