[Cite as State ex rel. Shisler v. Ohio Pub. Emps. Retirement Sys., 122 Ohio St.3d 148, 2009-

Ohio-2522.] 

THE STATE EX REL. SHISLER, APPELLANT, v. OHIO PUBLIC

EMPLOYEES RETIREMENT SYSTEM, APPELLEE. 

[Cite as State ex rel. Shisler v. Ohio Pub. Emps. Retirement Sys., 

 122 Ohio St.3d 148, 2009-Ohio-2522.] 

R.C. 145.46 — PERS did not abuse its discretion in denying surviving spouse’s 

request for joint-survivorship annuity when retiree died before his election 

for joint-survivorship became effective. 

(No. 2008-2102 — Submitted March 24, 2009 — Decided June 4, 2009.) 

APPEAL from the Court of Appeals for Franklin County, 

No. 07AP-946, 2008-Ohio-4830. 

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Per Curiam.

{¶ 1} This is an appeal from a judgment denying a writ of mandamus to 

compel appellee, Ohio Public Employees Retirement System (“PERS”), to accept 

the election of a pension-payment plan executed by a PERS retiree and directing 

PERS to provide the retiree’s surviving spouse with a monthly benefit based on a 

joint-survivorship annuity in accordance with the election. Because PERS did not 

abuse its discretion in denying the surviving spouse’s request for the jointsurvivorship annuity when the retiree died before his election became effective, 

we affirm the judgment of the court of appeals. 

Retirement, Initial Plan Election, and First Change 

{¶ 2} In 1998, Robert N. McLaughlin, a PERS member, applied for 

retirement with PERS. McLaughlin elected to receive his pension benefits under 

Plan D, which provided a joint-survivorship annuity paying him for life and 

thereafter paying his surviving spouse. McLaughlin designated his wife at that 

time as his beneficiary for any survivorship benefits due under the plan. 
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{¶ 3} Five years later, in 2003, McLaughlin divorced his wife and 

elected to have his pension-payment plan changed to Plan B, which provides a 

single-life annuity to the retiree with no monthly payments to any surviving 

spouse. McLaughlin signed a form acknowledging the effect of his election: 

{¶ 4} “As provided by Section 145.46, Ohio Revised Code, I authorize 

the Public Employees Retirement Board to recompute my retirement allowance 

based on Plan B (single life annuity) and I reserve the right to make later changes 

as provided by Section 145.46, Ohio Revised Code. 

{¶ 5} “I understand that the single life annuity is to be paid throughout 

my life only and terminates at my death with no further payment. If the total 

allowance received during my lifetime does not equal the total of my payments to 

the Retirement System, the remaining balance will be paid to my qualified 

beneficiary.” 

Remarriage and Attempted Plan Change 

{¶ 6} In March 2006, McLaughlin married appellant, Donna J. Shisler. 

The following month, McLaughlin designated Shisler as his PERS beneficiary, 

but he did not at that time change his pension-payment plan. He continued to be 

paid a monthly benefit based on a single-life annuity under Plan B. 

{¶ 7} In December 2006, McLaughlin requested and was mailed an 

application to change his payment plan. A few weeks later, a PERS employee 

discussed the application with him. McLaughlin completed the application in late 

January 2007, but he incorrectly elected all of the listed payment plans (Plans A, 

C, and D) instead of following the instructions and choosing only one of the 

specified plans. PERS returned the form to him with instructions that he was 

required to choose one payment plan. McLaughlin later telephoned PERS to 

notify it that he had not received an estimate of his monthly benefits under the 

different plans, and PERS then mailed him an estimate. 
January Term, 2009 

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{¶ 8} McLaughlin completed and signed the application to change his 

pension-payment plan from Plan B, the single-life annuity, to Plan D, a jointsurvivorship annuity with Shisler as the beneficiary, on February 25, 2007, and 

mailed it to PERS on March 1, 2007. The next day, McLaughlin died. PERS 

received McLaughlin’s request to change his pension plan on March 5, 2007. 

PERS refused Shisler’s request for survivor benefits under the decedent’s 

attempted change of the pension-payment plan. 

Mandamus Case 

{¶ 9} Shisler filed a complaint in the Court of Appeals for Franklin 

County for a writ of mandamus to compel PERS to accept the election executed 

by McLaughlin and to pay her the monthly survivor benefit in accordance with 

that election. PERS submitted an answer, and the parties filed evidence and 

briefs. 

{¶ 10} The court of appeals denied the writ. This cause is now before us 

upon Shisler’s appeal as of right. 

Mandamus to Remedy Abuse of Discretion by PERS 

{¶ 11} “[M]andamus is an appropriate remedy where no statutory right of 

appeal is available to correct an abuse of discretion by an administrative body.” 

State ex rel. Pipoly v. State Teachers Retirement Sys., 95 Ohio St.3d 327, 2002-

Ohio-2219, 767 N.E.2d 719, ¶ 14. Because there is no statutory appeal from 

PERS’s determination that Shisler is not entitled to a joint-survivorship annuity, 

mandamus is an appropriate remedy. See, e.g., State ex rel. Davis v. Pub. Emps. 

Retirement Bd., 120 Ohio St.3d 386, 2008-Ohio-6254, 899 N.E.2d 975, ¶ 24. “An 

abuse of discretion exists when a decision is unreasonable, arbitrary, or 

unconscionable.” State ex rel. Schaengold v. Pub. Emps. Retirement Sys., 114 

Ohio St.3d 147, 2007-Ohio-3760, 870 N.E.2d 719, ¶ 8. 

Pertinent Statutes 
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{¶ 12} Shisler asserts that PERS abused its discretion in denying her 

survivorship benefits. She claims that under R.C. 145.46, a properly executed 

PERS member’s request for a change in a pension plan is effective on the date it 

is received, notwithstanding the member’s prior death. 

{¶ 13} R.C. 145.46 provides: 

{¶ 14} “(E)(1) Following a marriage or remarriage * * *: 

{¶ 15} “(a) A retirant who is receiving the retirant’s retirement allowance 

under ‘plan B’ may elect a new plan of payment under division (B)(1), (3)(b), or 

(3)(c) of this section based on the actuarial equivalent of the retirant’s single 

lifetime benefit as determined by the board. 

{¶ 16} “* * * 

{¶ 17} “(2) * * * The plan elected under this division shall become 

effective on the date of receipt by the board of an application on a form approved 

by the board, but any change in the amount of the retirement allowance shall 

commence on the first day of the month following the effective date of the plan.” 

(Emphasis added.) 

{¶ 18} In analyzing this statute, we determine the legislative intent by 

reading words and phrases in context and construing them in accordance with 

rules of grammar and common usage. State ex rel. Hulls v. State Teachers 

Retirement Bd. of Ohio, 113 Ohio St.3d 438, 2007-Ohio-2337, 866 N.E.2d 483, ¶ 

32; State ex rel. Turner v. Eberlin, 117 Ohio St.3d 381, 2008-Ohio-1117, 884 

N.E.2d 39, ¶ 14. 

{¶ 19} R.C. 145.46(E)(2) expressly provides that an election to change a 

retiree’s pension-payment plan after remarriage is not effective until it is received 

by the PERS board. 

{¶ 20} Although Shisler correctly observes that this provision does not 

specify that an election to change a pension-payment plan is invalidated if the 

retiree dies before the election is received by the PERS board, R.C. 145.46 and 
January Term, 2009 

5 

related statutes establish this. Under the in pari materia canon of construction, 

“we read all statutes relating to the same general subject matter together and 

interpret them in a reasonable manner that ‘give[s] proper force and effect to each 

and all of the statutes.’ ” Cheap Escape Co., Inc. v. Haddox, L.L.C., 120 Ohio 

St.3d 493, 2008-Ohio-6323, 900 N.E.2d 601, ¶ 13, quoting State ex rel. Herman 

v. Klopfleisch (1995), 72 Ohio St.3d 581, 585, 651 N.E.2d 995. 

{¶ 21} For purposes of R.C. Chapter 145, an “annuity” is defined as 

“payments for life derived from contributions made by a contributor and paid 

from the annuity and pension reserve fund.” (Emphasis added.) R.C. 145.01(L). 

R.C. 145.43(D) provides that “[a]ny amount due a retirant * * * receiving a 

monthly benefit and unpaid to the retirant * * * at death shall be paid to the 

beneficiary designated in writing on a form approved by the board, signed by the 

retirant or recipient and filed with the board.” (Emphasis added.) Similarly, R.C. 

145.451 provides for a lump-sum death benefit to the retiree’s beneficiary upon 

the retiree’s death. 

{¶ 22} When he died, McLaughlin was receiving a PERS benefit under 

Plan B, a single-life annuity, to be paid during his lifetime. As he acknowledged 

in his request to change his pension-payment plan to Plan B after he divorced his 

first wife, the benefit terminated upon his death with no survivorship payment. At 

the time of his death, Plan B was the only payment plan in effect. Therefore, 

Shisler was entitled to only the lump-sum death benefit pursuant to R.C. 145.451. 

She was not entitled to the monthly payments under the Plan D joint-survivorship 

annuity, because at the time McLaughlin died, his election for Plan D was not 

effective under R.C. 145.46(E)(2). The PERS board did not receive that election 

until after his death. 

{¶ 23} This result is also supported by precedent. In State ex rel. Solomon 

v. Bd. of Trustees of the Police & Firemen’s Disability & Pension Fund (1995), 

72 Ohio St.3d 62, 647 N.E.2d 486, we unanimously affirmed the denial of a writ 
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of mandamus to compel a public-employee retirement fund to honor a deceased 

police officer’s application to cancel a single-life annuity payment plan and 

reselect a joint-and-survivor annuity plan with his wife as beneficiary. The court 

held that under the applicable statute, the decedent’s application for the joint-andsurvivor annuity plan was invalidated by his death before the effective date of his 

election: 

{¶ 24} “When Mr. Solomon died, his reselected plan, including his 

nomination of his wife as beneficiary, was not effective. At that time, his single 

life annuity was in effect and his right to retirement benefits in the fund 

terminated. Therefore, Mrs. Solomon was not entitled to retirement benefits 

based upon R.C. 742.3711(C) and Ohio Adm.Code 742-3-07(C)(2).” Id. at 66, 

647 N.E.2d 486. 

{¶ 25} Moreover, although Shisler correctly asserts that ambiguous 

pension statutes must be construed liberally in favor of public employees and their 

beneficiaries, there is no need to liberally construe statutes with unequivocal and 

definite meanings. State ex rel. Van Dyke v. Pub. Emps. Retirement Bd., 99 Ohio 

St.3d 430, 2003-Ohio-4123, 793 N.E.2d 438, ¶ 35. The applicable statutes here, 

including R.C. 145.46, have unequivocal meanings. Cf. Solomon, 72 Ohio St.3d 

at 65-66, 647 N.E.2d 486. 

{¶ 26} Therefore, PERS did not abuse its broad discretion in denying 

Shisler’s request for monthly payments under a joint-survivorship annuity. 

Equitable Estoppel 

{¶ 27} Shisler also claims that the court of appeals erred in failing to hold 

that PERS was equitably estopped from denying her request for survivorship 

benefits because a PERS employee had not provided McLaughlin estimates of the 

monthly payments under the various plans. 

{¶ 28} “ ‘Equitable estoppel prevents relief when one party induces 

another to believe certain facts exist and the other party changes his position in 
January Term, 2009 

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reasonable reliance on those facts to his detriment.’ ” Doe v. Archdiocese of 

Cincinnati, 116 Ohio St.3d 538, 2008-Ohio-67, 880 N.E.2d 892, ¶ 7, quoting 

State ex rel. Chavis v. Sycamore City School Dist. Bd. of Edn. (1994), 71 Ohio 

St.3d 26, 34, 641 N.E.2d 188. Equitable estoppel usually requires actual or 

constructive fraud. State ex rel. Mun. Constr. Equip. Operators’ Labor Council v. 

Cleveland, 114 Ohio St.3d 183, 2007-Ohio-3831, 870 N.E.2d 1174, ¶ 64. 

{¶ 29} There is no evidence of fraud here. In addition, there is no 

evidence of any mistaken advice by PERS. Therefore, PERS was not estopped 

from denying Shisler’s request for survivorship benefits. 

{¶ 30} Finally, Shisler was not entitled to have the decedent’s application 

relate back to the date that his original, incorrectly completed application to 

change from Plan B to Plan D was filed. Shisler’s reliance on Jeany v. Atlas 

Constr. Co. (Aug. 15, 1989), Franklin App. Nos. 88AP-1190 and 88AP-1196, 

1989 WL 92064, is misplaced. Jeany is a workers’ compensation case in which 

the court of appeals refused to allow a claimant to be penalized for the Industrial 

Commission’s failure to send the notification required by statute. 

Conclusion 

{¶ 31} PERS did not act in an unreasonable, arbitrary, or unconscionable 

manner by denying Shisler’s request for survivorship benefits, because the 

decedent’s election to change from a single-life annuity plan to a jointsurvivorship annuity plan was invalidated by his death before the election ever 

became effective. Therefore, we affirm the judgment of the court of appeals 

denying the writ. 

Judgment affirmed. 

 MOYER, C.J., and O’CONNOR, O’DONNELL, LANZINGER, and CUPP, JJ., 

concur. 

 PFEIFER and LUNDBERG STRATTON, JJ., dissent. 

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 PFEIFER, J., dissenting.

{¶ 32} PERS abused its discretion by denying the surviving spouse’s 

request for the joint-survivorship annuity. I believe that the surviving spouse, 

Donna Shisler, is entitled to the requested extraordinary relief, and, therefore, I 

dissent from the majority opinion. 

{¶ 33} As the majority concedes, the pertinent statutory provision, R.C. 

145.46, “does not specify that an election to change a pension-payment plan is 

invalidated if the retiree dies before the election is received by the PERS board.” 

Majority opinion at ¶ 20. Accordingly, nothing in the statute necessitates the 

invalidation of Robert McLaughlin’s election to change his payment plan simply 

because he died before the PERS board received his plan change, and this court 

should not add language that does not exist in R.C. 145.46. See State ex rel. 

Columbia Reserve Ltd. v. Lorain Cty. Bd. of Elections, 111 Ohio St.3d 167, 2006-

Ohio-5019, 855 N.E.2d 815, ¶ 32. 

{¶ 34} Moreover, by applying the in pari materia rule of statutory 

construction, the majority implicitly recognizes that R.C. 145.45 is ambiguous. 

See State v. Coburn, 121 Ohio St.3d 310, 2009-Ohio-834, 903 N.E.2d 1204, ¶ 13 

(unnecessary to read a statute in pari materia when the statute is not ambiguous). 

Because of R.C. 145.46’s ambiguity, we must read it “liberally in favor of the 

interests of the public employees and their dependents that the pension statutes 

were designed to protect.” State ex rel. Solomon v. Police & Firemen’s Disability 

& Pension Fund Bd. of Trustees (1995), 72 Ohio St.3d 62, 65, 647 N.E.2d 486; 

State ex rel. Moss v. Ohio State Hwy. Patrol Retirement Sys., 97 Ohio St.3d 198, 

2002-Ohio-5806, 777 N.E.2d 259, ¶ 21. And we must also avoid an illogical or 

absurd result in interpreting this ambiguous provision. In re T.R., 120 Ohio St.3d 

136, 2008-Ohio-5219, 896 N.E.2d 1003, ¶ 16. 

{¶ 35} Applying these long-standing rules of statutory construction, the 

court should conclude that McLaughlin intended that Shisler receive the joint-
January Term, 2009 

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survivorship annuity upon his death and that he took all the steps required by R.C. 

145.46 to effectuate his intention. Cf. Polen v. Baker (2001), 92 Ohio St.3d 563, 

565, 752 N.E.2d 258, quoting Oliver v. Bank One, Dayton, N.A. (1991), 60 Ohio 

St.3d 32, 34, 573 N.E.2d 55 (“ ‘[i]n the construction of a will, the sole purpose of 

the court should be to ascertain and carry out the intention of the testator’ ”). And 

McLaughlin’s intentions were not ephemeral. He sent in a completed form that 

selected all the payment plans, an oversight that perhaps could have been and 

should have been corrected with a simple phone call. Instead he was asked to 

send in another completed form, which he did. There is nothing else McLaughlin 

could have done to effectuate his intentions, except not die. 

{¶ 36} I conclude that PERS abused its discretion in adopting an 

interpretation of R.C. 145.46 that is not supported by its plain language and that 

the majority’s holding is contrary to our duties to liberally construe pension 

provisions in favor of members and their beneficiaries and to avoid illogical 

results. Shisler is entitled to the requested writ of mandamus. I dissent. 

 LUNDBERG STRATTON, J., concurs in the foregoing opinion. 

__________________ 

 Law Offices of Tony C. Merry, L.L.C., and Tony C. Merry, for appellant. 

 Richard Cordray, Attorney General, and Laura Erebia Parsons, Assistant 

Attorney General, for appellee. 

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