SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1952-18T2

PATRICIA MONTERO,

Petitioner-Appellant, 

v. 

BOARD OF TRUSTEES, 

PUBLIC EMPLOYEES' 

RETIREMENT SYSTEM,

Respondent-Respondent.

_________________________

Submitted June 30, 2020 – Decided July 20, 2020

Before Judges Vernoia and Rose. 

On appeal from the Board of Trustees of the Public 

Employees' Retirement System, Department of the

Treasury, PERS No. 2-10-235688.

Patricia Montero, appellant pro se. 

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Donna Sue Arons, Assistant Attorney 

General, of counsel; Jeffrey David Padgett, Deputy 

Attorney General, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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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Petitioner Patricia Montero appeals from the New Jersey Division of 

Pension and Benefits (Division) final decision denying her appeal from a May 

21, 2012 decision of the Board of Trustees (Board) of the Public Employees' 

Retirement System (PERS) rejecting her request to reactivate a PERS account 

following her January 1, 2009 retirement after a layoff and subsequent 

reinstatement on July 30, 2010. The Division concluded Montero's appeal, 

which was filed nearly six years after the Board's May 21, 2012 decision, was 

time-barred under N.J.A.C. 17:1-1.3(d). We agree and affirm.

I.

The pertinent facts are not in dispute. Montero became employed by 

Bergen County, and enrolled in PERS, in 1997. In July 2008, Montero was laid 

off effective August 29, 2008. She challenged the layoff in an appeal to the 

Civil Service Commission (Commission). 

While her appeal was pending, and following the layoff, Montero filed for 

a deferred PERS retirement effective January 1, 2009. Her retirement was 

approved by the Board, and, in February 2009, she began receiving retirement 

benefits as a Tier 1 PERS member.1 

1

 "PERS members are categorized by specific membership tiers based on 

enrollment date. Membership tiers affect a member's enrollment and retirement 
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Eighteen months later, in July 2010, it was determined Montero had 

displacement rights over another employee who had not been laid off, and, as a 

result, Montero was reinstated to her position effective July 31, 2010. In an 

August 20, 2010 letter, the Division advised Montero that the Tier 1 retirement 

benefits she had been receiving were suspended upon her reinstatement; she was 

reenrolled effective August 1, 2010 in a new PERS account as a Tier 4 member; 

and she would receive both Tier 1 and Tier 4 benefits when she retired a second 

time. 

In April 2011, the Commission determined that Montero's appeal from her 

layoff became moot when she was reinstated on July 31, 2010, and that her 

claimed entitlement to back pay, benefits, and counsel fees would be addressed 

in a separate decision. On May 7, 2011, the Commission issued its final decision 

in Montero's appeal from her layoff, determining the layoff was the result of an 

administrative error in calculating Montero's title rights and was not the result 

of bad faith or invidious motivation. The Commission therefore determined she 

was not entitled to a counsel fee award or back pay and benefits during the layoff 

period. 

eligibility." Public Employees' Retirement System (PERS) Member Handbook, 

p. 7 (Feb. 2020) https://nj.gov/treasury/pensions/documents/guidebooks/persbo

ok.pdf (last visited June 30, 2020).
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In February 2012, Montero requested the Division allow her to rescind her 

January 1, 2009 retirement and combine her initial PERS Tier 1 account and the 

PERS Tier 4 account in which she was enrolled following her July 30, 2010 

reinstatement. In a March 7, 2012 letter, the Division rejected Montero's 

request, explaining a retiree may change their retirement options only during the 

first thirty days following their effective retirement date. The Division found

Montero's effective retirement date was January 1, 2009; she had only until 

January 31, 2009 to request a change; and she failed to request a change during 

that thirty-day period. 

The Division also noted the Commission's decision that Montero was not 

entitled to back pay or benefits during the period following the layoff and prior 

to her reinstatement. The Division explained that, because it was determined 

she was not entitled to benefits during that time, the PERS statute did not allow

her to purchase that time toward her pension and did not permit an award of 

pension service credit for that time. 

Montero appealed the Division's decision to the Board. She claimed she 

initially retired and collected benefits after she was laid off because she did not 

know she would be reinstated. She also argued her two pension accounts should 

be combined because it was not her fault she was laid off.
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In a May 21, 2012 letter decision, the Board denied Montero's appeal from 

the denial of her request to reactivate her initial PERS account or allow an award 

of additional service credit. The Board found that although Montero was 

reinstated to her position after it was determined she should not have been laid 

off, it lacked the authority to reopen her initial PERS account or award service 

credit for the layoff period because she did not receive an award of back pay or 

benefits. 

The Board's letter also notified Montero that if she disagreed with the 

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

setting forth the reasons for her disagreement. The decision further advised that 

"[i]f no such written statement is received within the [forty-five-day] period, the 

determination of the Board shall be final." The forty-five-day period ended on 

July 5, 2012.

Montero did not file the required written statement appealing the Board's 

decision by July 5, 2012, and, instead, she waited six years. In a May 23, 2018 

letter from her counsel, Montero requested the Board "reopen" its decision and 

claimed the Board erred six years earlier because it did not consider a statute, 

N.J.S.A. 43:15A-8, which Montero asserted authorized her reenrollment in the 

initial PERS account upon her reinstatement even without an award of back pay
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or benefits. The letter did not offer any reason, argument, or evidence excusing 

Montero's failure to file her appeal within the forty-five-day period set forth in 

the Board's May 21, 2012 decision.

In an August 21, 2018 decision, the Board noted that it reviewed 

Montero's counsel's May 23, 2018 letter, as well as Montero's "personal 

statements," but that her appeal from the May 21, 2012 decision was filed almost 

six years beyond the forty-five-day deadline.2 The Board therefore denied as 

untimely Montero's request to appeal the Board's decision.

Montero appealed, and on November 15, 2018, the Board issued its final 

decision. The Board noted that N.J.A.C. 17:1-1.3(d) provides a forty-five-day 

time period to appeal from a Board determination, and, in accordance with the 

regulation, the May 21, 2012 decision advised Montero that if she did not file 

an appeal within forty-five days, the decision would be final. The Board found 

Montero failed to file her appeal within the requisite timeframe and instead 

waited six years to attempt to appeal from the Board's decision. The Board 

observed Montero acknowledged she did not file a timely appeal and asserted 

she "did not do so due to health reasons," but the Board again noted the six-year 

2

 Petitioner has not included in the record on appeal the "personal statements" 

to which the Board referred in its August 21, 2018 decision.
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delay in filing the appeal and denied the appeal as untimely. 3 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. 

3

 The Board's decision refers to its review of "records provided by [Montero's] 

health care provider," but Montero has not supplied on appeal the records 

submitted to the Board.
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Div. 2015) (citations omitted). However, "[a]n appellate court, . . . is 'in no way 

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.

In her pro se brief on appeal, Montero argues the merits of the Board's 

May 21, 2012 decision, claiming the Board erred by failing to properly consider 

the provisions of N.J.S.A. 43:15A-8. In making the argument, however, she 

fails to recognize that she appeals only from the Board's November 15, 2018 

decision finding her appeal from the May 21, 2012 decision was untimely.4 In 

its November 15, 2018 decision, the Board did not consider the merits of its May 

21, 2012 decision, nor was it required to do so. Instead, it considered only 

whether Montero's putative appeal from the May 21, 2012 decision was timely. 

We therefore do not address the merits of Montero's claim the Board erred in 

4

 The Board's May 21, 2012 decision is not properly before this court on appeal 

for three separate but equally dispositive reasons. First, petitioner had no appeal 

as of right from the decision because it was not a final agency decision. R. 2:2-

3(a)(2). Second, even assuming the decision was a final agency decision, 

Montero did not file a timely appeal from it. R. 2:4-1(b). Third, Montero does 

not identify the decision in her notice of appeal. See 1266 Apartment Corp. v. 

New Horizon Deli, Inc., 368 N.J. Super. 456, 459 (App. Div. 2004) ("[I]t is only 

the judgment or orders designated in the notice of appeal which are subject to 

the appeal process and review."). 
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2012, and we consider only the Board's November 15, 2018 decision rejecting 

her appeal as untimely.

Under N.J.A.C. 17:1-1.3(b), the Board's May 21, 2012 decision became 

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

the date of the written notice of the decision." See also N.J.A.C. 17:1-1.3(d) 

(providing that unless a written statement challenging the Board's decision is 

submitted within forty-five days, the Board's decision "shall be final"). Montero 

does not dispute she received the Board's decision on or about May 21, 2012; 

she was aware of the forty-five-day deadline for filing her request for a hearing

and submitting a written statement challenging the decision; and she failed to 

either timely request a hearing or submit a written statement. Based on those 

undisputed facts, we discern no basis to conclude the Board's decision rejecting 

Montero's clearly untimely appeal was arbitrary, capricious, or unreasonable. 

See Russo, 206 N.J. at 27.

We reject Montero's argument the Board erred in denying her appeal 

because pensioners have a right to reopen pension grants upon a showing of 

good cause and reasonable diligence. Montero relies on Steinmann v. State, 

Department of Treasury, where the Court found a public employee pension 

board "may honor a pensioner's request to reopen her retirement selection after 
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it is due and payable if a showing of good cause, reasonable grounds, and 

reasonable diligence has been made." 116 N.J. 564, 573 (1989). That is not the 

circumstance here. 

In her counsel's May 23, 2018 letter, Montero did not seek to reopen a 

retirement selection she had made. As the letter recognized, in 2012 Montero 

challenged the Board's May 21, 2012 decision denying her request to consolidate 

her pension accounts and for service credit following the period between her 

layoff and reinstatement. In her counsel's May 23, 2018 letter, Montero sought 

only "to reopen the Board's May 21, 2012 decision." Thus, unlike the plaintiff 

in Steinmann who sought to reopen her selection of pension benefits, in May 

2018 plaintiff sought to revisit an adverse 2012 Board decision that she failed 

to timely challenge. As noted, in its November 15, 2018 decision, the Board 

denied the request to reopen the six-year-old decision as untimely.

Montero's brief also suggests she was prevented from timely challenging 

the Board's May 21, 2012 decision due to health issues. To the extent we may 

broadly interpret the argument as a claim her belated appeal should be deemed 

timely under the doctrine of equitable tolling, we find no merit to it. 

"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 
11 A-1952-18T2

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 [or 

her] rights, or (3) if the plaintiff has timely asserted his [or her] 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.

There is no evidence showing Montero failed to timely appeal from the 

Board's May 21, 2012 decision due to trickery or because she was misled about 

her appeal rights. The Board fully and accurately advised Montero of the 

deadline for filing her appeal in its decision. Moreover, the record on appeal is 

bereft of any evidence demonstrating she was prevented from exercising her

right to appeal. See F.H.U., 427 N.J. Super. at 379. She vaguely argues in 
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conclusory fashion that health issues prevented her from filing a timely appeal,

but there is simply no evidence demonstrating any purported health issue 

prevented her from filing an appeal for the six years following the Board's 

decision. Thus, even giving Montero the benefit of a very broad reading of the 

arguments asserted in her pro se brief, there is no basis to conclude the time 

within which she could properly appeal was equitably tolled until her counsel's 

May 23, 2018 letter. 

Montero's remaining argument—that there were factual issues requiring 

an evidentiary hearing—is without sufficient merit to warrant discussion in a 

written opinion. R. 2:11-3(e)(1)(E).

Affirmed.