SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2115-18T3

JOSE VELAZQUEZ, 

Petitioner-Appellant, 

v. 

BOARD OF TRUSTEES, 

POLICE AND FIREMEN'S 

RETIREMENT SYSTEM, 

Respondent-Respondent.

_________________________

Argued telephonically May 26, 2020 –

Decided June 12, 2020

Before Judges Ostrer and Vernoia. 

On appeal from the Board of Trustees of the Police and

Firemen's Retirement System, Department of the 

Treasury, PFRS No. 3-90216. 

Jennifer L. Gottschalk argued the cause for appellant. 

Nels J. Lauritzen, Deputy Attorney General, argued the 

cause for respondent (Gurbir S. Grewal, Attorney 

General, attorney; Melissa H. Raksa, Assistant 

Attorney General, of counsel; Jeffrey David Padgett, 

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NOT FOR PUBLICATION WITHOUT THE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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A-2115-18T3

PER CURIAM

Petitioner Jose Velazquez appeals from the New Jersey Division of 

Pension and Benefits (Division) final decision affirming the Police and 

Fireman's Retirement System (PFRS) Board of Trustees' (Board) rejection of his 

appeal from a March 11, 2014 determination he is not eligible to file an 

application for an accidental disability retirement allowance because he was not 

a member in service. The Division concluded Velazquez's appeal, which was 

filed four years after the March 11, 2014 determination he was not eligible to 

file the application, was time-barred under N.J.A.C. 17:1-1.3(b). We agree and 

affirm.

I.

Velazquez first enrolled in PFRS in 2000, when he became employed by 

the Camden County Department of Corrections. Less than a year later, he 

became employed by the City of Camden as a police officer, and transferred his 

enrollment in PFRS under his new position. 

In August 2005, Velazquez applied for an accidental disability retirement

allowance, to be effective September 1, 2005. The application sought an 

accidental disability retirement allowance based on a work-related incident that 

occurred nine months earlier on December 5, 2004. Velazquez subsequently 
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changed his retirement date to February 1, 2006, and, later, requested a change 

of his retirement date to August 1, 2006. On July 17, 2006, Velazquez cancelled 

his planned retirement and was advised "if and when [he] decide[d] to retire, it 

[would] be necessary for [him] to file a new retirement application." Velazquez

returned to full duty as a police officer on September 26, 2006. 

On January 22, 2007, the Camden police department suspended Velazquez 

with pay for violating the department's rules and regulations. More particularly, 

Velazquez was suspended because the Camden County Prosecutor determined 

Velazquez could not possess a weapon for any purpose as the result of a 

domestic violence incident. Following an initial hearing, Velazquez was 

suspended on March 14, 2007, without pay pending the outcome of a 

departmental hearing. 

Velazquez subsequently obtained other public employment and, as a 

result, became enrolled in the Public Employees' Retirement System on 

September 1, 2008. In November 2008, the Board advised Velazquez his PFRS 

account would expire on March 31, 2009, because he last contributed to his

PFRS account in March 2007. 

On October 6, 2011, Camden terminated Velazquez from his position as 

a police officer. Velazquez appealed the termination of his employment to the 
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Civil Service Commission, and subsequently filed separate civil litigation 

related to the termination of his employment. When his employment with 

Camden ended on October 6, 2011, Velazquez had no pending application for 

an accidental disability retirement before the PFRS. 

On November 19, 2012, Velazquez submitted a new application to PFRS 

for an accidental disability retirement allowance based on the same December 

5, 2004 incident for which he sought the allowance in his August 2005 

application. By letter dated November 27, 2012, the Division notified 

Velazquez that it determined he "did not file [his] application within 

five . . . years from the date of the [December 5, 2004] accident that caused the 

alleged disability," and that the Board could not consider the application unless 

Velazquez demonstrated the failure to file the application within the five-year 

period was "due to a delayed manifestation of the disability or to circumstances 

beyond [his] control." The Division further advised that if the necessary 

documentation supporting the late filing was not provided within sixty-days, 

Velazquez's application would be cancelled. 

Velazquez's then-counsel sent a December 19, 2012 letter to the Division, 

advising he was in the process of obtaining medical documentation to support 

the filing of the application more than five-years after the December 5, 2004 
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incident, and he requested additional time to obtain the information. In a 

February 8, 2013 letter to Velazquez's counsel, the Board acknowledged receipt 

of the request for "additional time to submit the appropriate documentation on" 

Velazquez's behalf, but noted that no information or documentation had been 

supplied. The Board requested that counsel notify it within ten days whether he 

intended to submit additional information or wished to close the matter. The 

record is devoid of any evidence the requested additional information was ever 

supplied.

In response to an inquiry made by Velazquez, the Division notified him

in a January 28, 2014 letter that his November 2012 application for an accidental 

disability retirement allowance was rejected because he was removed from his 

position on October 6, 2011, and, therefore, he was not a member in service 

when the application was filed. The letter, which was also sent to Velazquez's 

counsel, informed him of his right to appeal from the decision to the Board. 

Velazquez appealed.

In a March 11, 2014 letter decision addressed to Velazquez's counsel, the 

Board explained Velazquez's employment with the Camden police department 

terminated on October 6, 2011, and he did not file his application for an 

accidental disability retirement allowance until November 2012. The Board 
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found Velazquez was not a member in service under N.J.A.C. 17:4-6.7 when he 

filed his application, and, therefore, the application was denied in accordance 

with N.J.S.A. 43:16A-7, which permits the filing of an application for an 

accidental disability retirement allowance by "a member-in-service." The Board 

also denied the application because it was not supported by two medical reports 

as required by N.J.A.C. 17:4-6.1(d).

The decision also notified Velazquez that if he disagreed with the Board's 

decision, he had forty-five days to submit a written statement to the Board 

setting forth the reasons for his disagreement with its decision. The decision 

further advised that "[i]f no such written statement is received within the [fortyfive-day] period, the determination of the Board shall be final." The forty-fiveday time period ended on April 26, 2014. 

Velazquez did not file the required written statement appealing the 

Board's decision by April 26, 2014, and, indeed, he waited more than four years 

to challenge the Board's March 11, 2014 determination. In a March 13, 2018 

letter to the Board, Velazquez's new counsel requested that her letter be 

"consider[ed] . . . an appeal" from the Board's March 11, 2014 decision denying 

Velazquez's application for an accidental disability retirement. The letter also 

noted Velazquez's appeal from Camden's termination of his employment had 
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been resolved on March 5, 2018, in the Office of Administrative Law with 

Velazquez's withdrawal of his appeal without prejudice.1

On July 9, 2018, Velazquez and his counsel appeared before the Board, 

and requested that it permit an out-of-time appeal of the Board's March 11, 2014 

decision. Velazquez's counsel presented written submissions and exhibits to the 

Board supporting the request. 

 In a July 11, 2018 letter decision, the Board noted that it considered 

Velazquez's submissions, and it explained he waited "almost four years beyond 

the regulatory timeframe permitted" under N.J.A.C. 17:1-1.3(b) to file his 

appeal. The Board determined Velazquez failed to present good cause 

permitting a relaxation of the timeframe for the filing of the appeal, and it denied 

his request that the Board consider his appeal from its March 11, 2014 decision. 

The Board later denied Velazquez's request for reconsideration of its 

decision and rejected his request for a hearing in the Office of Administrative 

Law, finding there were no facts in dispute requiring a hearing. The Board also 

1

 The record on appeal includes limited correspondence related to his appeal to 

the Civil Service Commission from Camden's termination of his employment, 

as well as some orders entered in the proceedings by the Office of 

Administrative Law. We discern from the limited information provided that 

there were numerous procedural issues and delays during the proceedings which, 

at least in part, explain the lengthy pendency of that matter. 
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directed that the Board secretary prepare a draft of "detailed Findings of Fact 

and Conclusions of Law that will . . . become the Board's final administrative 

determination" upon its formal adoption by the Board. It appears the Board 

adopted Findings of Fact and Conclusions of Law denying Velazquez's request 

for reconsideration and for a hearing on December 10, 2018.2

Velazquez appealed from the Board's decisions. In its final agency 

determination, the Division found the Board's March 11, 2014 decision advised 

Velazquez and his counsel that an appeal from a denial of his application must 

be filed within forty-five days. The Division further found the Board was not 

informed Velazquez had appealed the termination of his employment with 

Camden until his current counsel mentioned that fact in her March 13, 2018 

letter requesting permission to appeal from the Board's March 11, 2014 denial 

of his application. The Division determined Velazquez was aware the appeal of 

his termination was pending in March 2014, and, in support of his request that 

the Board accept an appeal filed four years beyond the regulatory deadline, 

Velazquez did "not present new, previously unavailable information" and did 

2

 The Findings of Fact and Conclusions of Law adopted by the Board on 

December 10, 2018, are not included in the record on appeal. See R. 2:6-1(a)(1) 

(stating the appendix "shall contain . . . such other parts of the record . . . as are 

essential to the proper consideration of the issues").
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not demonstrate "good cause to reopen" the March 11, 2014 decision. The 

Division rejected Velazquez's request for leave to appeal out of time. This 

appeal followed.

II.

Our "review of administrative agency action is limited. 'An administrative 

agency's final quasi-judicial decision will be sustained unless there is a clear 

showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair 

support in the record.'" Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 

N.J. 14, 27 (2011) (citations omitted). "A reviewing court 'may not substitute 

its own judgment for the agency's, even though the court might have reached a 

different result.'" In re Stallworth, 208 N.J. 182, 194 (2011) (citation omitted).

"[C]ourts afford substantial deference to an agency's interpretation of a 

statute that the agency is charged with enforcing." Richardson v. Bd. of Trs., 

Police & Firemen's Ret. Sys., 192 N.J. 189, 196 (2007). "Such deference has 

been specifically extended to state agencies that administer pension statutes," 

because "'a state agency brings experience and specialized knowledge to its task 

of administering and regulating a legislative enactment within its field of 

expertise.'" Piatt v. Police & Firemen's Ret. Sys., 443 N.J. Super. 80, 99 (App. 

Div. 2015) (citations omitted). However, "[a]n appellate court, . . . is 'in no way 
10 A-2115-18T3

bound by the agency's interpretation of a statute or its determination of a strictly 

legal issue.'" Richardson, 192 N.J. at 196 (citation omitted). We "apply de novo 

review to an agency's interpretation of a statute or case law." Russo, 206 N.J. 

at 27.

Under N.J.A.C. 17:1-1.3(b), the Board's March 11, 2014 decision became 

final unless Velazquez "file[d] a request for a hearing within [forty-five] days 

after the date of the written notice of the decision." Velazquez does not dispute 

he received the Board's decision on or about March 11, 2014; he was aware of 

the forty-five-day deadline for filing his request for a hearing; and he failed to 

file a timely appeal.

Velazquez instead argues the Board and the Division erred because he was 

entitled to equitable tolling of the forty-five-day deadline due to "his disabling 

PTSD and depression, and his attorneys' collective omissions to act on his behalf 

to secure his pension benefits." He claims he "had at least four attorneys 

pursuing claims . . . over his suspension and termination" from the Camden 

police department, "yet none had completed the cases in [Velazquez's] favor" 

and the attorneys either forgot or ignored Velazquez's accidental disability 

retirement claim. He also asserts the Board "either misled him or ignored him 

about the status of his application and account." 
11 A-2115-18T3

"Equitable tolling is traditionally reserved for limited occasions." F.H.U. 

v. A.C.U., 427 N.J. Super. 354, 379 (App. Div. 2012). A statute of limitations 

may be tolled "(1) [if] the defendant has actively misled the plaintiff, (2) if the 

plaintiff has 'in some extraordinary way' been prevented from asserting his 

rights, or (3) if the plaintiff has timely asserted his rights mistakenly in the 

wrong forum . . . ." Ibid.; see also Freeman v. State, 347 N.J. Super. 11, 31 

(App. Div. 2002). 

Equitable tolling affords relief from "inflexible, harsh or unfair 

application of a statute of limitations, but it requires the exercise of reasonable 

insight and diligence by a person seeking its protection." Villalobos v. Fava, 

342 N.J. Super. 38, 52 (App. Div. 2001). However, "absent a showing of 

intentional inducement or trickery by a defendant, the doctrine of equitable 

tolling should be applied sparingly and only in the rare situation where it is 

demanded by sound legal principles as well as the interests of justice." Freeman,

347 N.J. Super. at 31.

Velazquez makes no showing his failure to timely file his appeal from the 

Board's March 11, 2014 decision was the result of trickery or because he was 

misled about his appeal rights. He argues the Board misinformed him about the 

reason for its rejection of his application for an accidental disability retirement, 
12 A-2115-18T3

but the March 11, 2014 decision left not room for confusion—it expressly stated 

respondent's application was rejected because he was not a member in service 

when he filed his application in November 2012 since his employment with 

Camden ended in October 2011, and because he failed to provide the required 

medical reports. The record also established the Board acted in exacting 

compliance with the requirements of N.J.A.C. 17:1-1.3(d); the March 11, 2014 

decision included a notice advising Velazquez he was required to file his appeal 

from the Board's decision within forty-five days or the decision would become 

final. 

Moreover, Velazquez failed to present any evidence demonstrating he was 

prevented from exercising his right to appeal. See F.H.U., 427 N.J. Super. at 

379. He argues in conclusory fashion he is entitled to equitable tolling because 

he has PTSD, but he did not present any competent evidence demonstrating his 

PTSD prevented him from timely filing his appeal in 2014, or that his PTSD 

prevented him from filing an appeal from the March 11, 2014 decision at any 

time during the ensuing four years.3

3

 The psychiatric and psychological reports submitted to the Board and Division 

in connection with Velazquez's request to file his appeal four years beyond the 

deadline are from 2006 and 2013, prior to the issuance of the Board's March 11, 

2014 decision. Velazquez did not provide any reports stating that any purported 
13 A-2115-18T3

The record also is bereft of any evidence showing Velazquez exercised 

diligence in pursuing the appeal from the March 11, 2014 decision. As he 

acknowledges, equitable tolling requires a plaintiff to "diligently pursue their 

claims" because although it "'affords relief from inflexible, harsh or unfair 

application of a statute of limitations,' [it] does not excuse claimants from 

exercising the reasonable insight and diligence required to pursue their claims." 

Freeman, 347 N.J. Super. at 31-32 (quoting Villalobos, 342 N.J. Super. at 52). 

Velazquez does not, however, dispute he received the decision, which clearly 

advised it would become final if an appeal was not filed within forty-five days. 

Yet, he failed to present evidence he took any action to ensure an appeal was 

timely filed or pursued over the next four years. In other words, he made no 

showing of the requisite diligence in pursing his appeal. 

Velazquez faults the purported failures of the numerous attorneys he 

employed over the years concerning his employment related issues, the appeal 

of his termination, and his application for an accidental disability retirement. 

"[I]t has been held that '[i]n non-capital cases, attorney error, miscalculation, 

inadequate research or other mistakes have not been found to rise to the level of 

illness or disability interfered with his ability to diligently pursue a timely appeal 

during the four years following the Board's decision. 
14 A-2115-18T3

the "extraordinary" circumstances required for equitable tolling.'" Binder v. 

Price Waterhouse & Co., 393 N.J. Super. 304, 313-14 (App. Div. 2007) (quoting 

Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001)). Velazquez relies on the Third 

Circuit Court of Appeals's decision in Schlueter v. Varner, for the proposition 

that "egregious attorney misconduct may justify equitable tolling." 384 F.3d 69, 

77 (3d Cir. 2004). But, the court in Schlueter held "attorney 

malfeasance . . . without more, is not sufficient to warrant equitable tolling" of 

a statute of limitations. Ibid. A plaintiff "must also show he [or she] acted with 

reasonable diligence, and that the extraordinary circumstances caused his [or 

her] petition to be untimely." Ibid. (quoting Baldayaque v. United States, 338 

F.3d 145, 153 (2d Cir. 2003)); see also Binder, 393 N.J. Super. at 314 (same). 

The court in Schlueter rejected the plaintiff's claim his attorney's malfeasance 

required the equitable tolling of the statute of limitations because the plaintiff 

failed to present evidence he exercised reasonable diligence to ensure his 

petition was timely filed. Id. at 78. 

The same result is appropriate here. Plaintiff failed to present evidence 

he exercised reasonable diligence to pursue a timely appeal from the March 11, 

2014 decision. As noted, the record does not disclose any action taken by him 

to ensure the timely filing of his appeal. See Binder, 393 N.J. Super. at 314 
15 A-2115-18T3

(rejecting the assertion the plaintiff's attorney's errors equitably tolled the statute 

of limitations because the plaintiff did not show "he acted with reasonable 

diligence in filing the state court matter and . . . failed to present a legitimate 

reason why his filing was untimely"). We therefore discern no basis to conclude 

the Division arbitrarily, capriciously, or unreasonably rejected Velazquez's 

claim his appeal from the March 11, 2014 decision was timely based on 

equitable tolling grounds. 

Velazquez also argues that tolling the time period for the filing of his 

appeal from the Board's decision "makes sense" because other litigation he 

prosecuted following the termination of his employment, and his appeal to the 

Civil Service Commission from the termination of his employment, "could have 

favorably resolved [his] employment issues with . . . Camden" and, if 

successful, "probably would have protected his PFRS pension." The assertion 

does not offer any justification for the failure to timely appeal the Board's March 

11, 2014 decision or excuse the abject lack of any diligence by Velazquez in 

prosecuting a timely appeal. In addition, as it turns out, Velazquez was not 

successful in his appeal from Camden's October 2011 termination of his 

employment and, as such, it appears there is no basis to challenge the Board's 
16 A-2115-18T3

March 11, 2011 determination Velazquez was not entitled to apply for benefits 

in November 2012 because, at that time, he was no longer a member in service. 

We recognize it is "well-settled . . . that since pension laws are remedial 

legislation, they must be liberally construed in favor of the persons intended to 

be benefitted thereby." Bumbaco v. Bd. of Trs. of Pub. Emps.' Ret. Sys., 325 

N.J. Super. 90, 94 (App. Div. 1999). It is also well-settled the Board has the 

authority to reopen a decision upon a showing of good cause. Duvin v. State, 

Dep't of Treasury, Pub. Emps.' Ret. Sys., 76 N.J. 203, 207 (1978). "[I]n the 

absence of legislative restriction," the Board has the inherent power "to reopen 

or to modify and to rehear orders previously entered by it." Ibid. However, the 

power to reopen, modify, or rehear orders "must be exercised reasonably, and 

application seeking its exercise must be made with reasonable diligence." Ibid.; 

see e.g., Steinmann v. State, Dep't of Treasury, Div. of Pensions, 116 N.J. 564, 

573 (1989) (explaining "the Board may honor a pensioner's request to reopen [a] 

retirement selection after it is due and payable if a showing of good cause, 

reasonable grounds, and reasonable diligence has been made"). 

Measured against that standard, we are not convinced the Division's 

decision to deny Velazquez's request to file his appeal four years beyond the 

deadline was arbitrary, capricious, or unreasonable. Velazquez presented no 
17 A-2115-18T3

evidence establishing good cause for his long delay in filing his appeal after 

being notified in March 2014, that if he failed to file the appeal within forty-five 

days the Board's decision became final. He exercised no due diligence in 

pursuing the claim during the four-year period, and contrary to his assertions, 

there is no evidence he was misinformed or misled about the Board's decision, 

his right to appeal, or his obligation to appeal within the forty-five-day deadline. 

We are convinced the record lacks any showing of the good cause and due 

diligence required to allow the Division to ignore the regulatory deadline. 

Velazquez devotes the balance of his brief to arguments concerning the 

merits of the Board's March 11, 2014 decision. We need not address those 

arguments because Velazquez did not timely appeal to this court from the 

Board's decision. See R. 2:4-1(b); R. 2:4-4(a). In addition, Velazquez presently 

appeals solely from an order denying his request for leave to file an untimely 

appeal from the Board's March 11, 2014 decision. The Division affirmed the 

Board's denial of the request, and, therefore, the Division did not address the 

merits of Velazquez's challenge to the March 11, 2014 decision. Because we 

are convinced the Division correctly denied Velazquez's request to file an
18 A-2115-18T3

untimely appeal, we also find it unnecessary to address Velazquez's claims the 

Board erred by rejecting his application in 2014. 

Affirmed.