LOUIS PEPE VS. BOARD OF TRUSTEES, ETC. CHRISTOPER BARRELLA VS. BOARD OF TRUSTEES, ETC. JAMES BOYLE VS. BOARD OF TRUSTEES, ETC. RICHARD BIZZARI VS. BOARD OF TRUSTEES, ETC. (PUBLIC EMPLOYEES' RETIREMENT SYSTEM) (CONSOLIDATED) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-2247-19
A-2249-19
A-2250-19
A-2251-19
LOUIS PEPE,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES,
PUBLIC EMPLOYEES'
RETIREMENT SYSTEM,
Respondent- Respondent.
__________________________
CHRISTOPHER BARRELLA,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES,
PUBLIC EMPLOYEES'
RETIREMENT SYSTEM,
Respondent-Respondent.
___________________________
JAMES BOYLE,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES,
PUBLIC EMPLOYEES'
RETIREMENT SYSTEM,
Respondent-Respondent.
___________________________
RICHARD BIZZARI,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES,
PUBLIC EMPLOYEES'
RETIREMENT SYSTEM,
Respondent-Respondent.
____________________________
Argued October 20, 2021 – Decided November 22, 2021
Before Judges Hoffman, Geiger and Susswein.
On appeal from the Board of Trustees of the Public
Employees' Retirement System, Department of
Treasury, PERS Nos: x-xxxx372, x-xxxx413; x-
xxxx515; and x-xxxx843.
Jared J. Limbach argued the cause for appellants
(Donnelly Minter & Kelly, LLC, attorneys; Patrick J.
A-2247-19
2
Galligan, of counsel; Jared J. Limbach and Christin D.
Fontanella, on the briefs).
Christopher R. Meyer, Deputy Attorney General,
argued the cause for respondent (Andrew J. Bruck,
Acting Attorney General, attorney; Melissa H. Raksa,
Assistant Attorney General, of counsel; Porter R.
Strickler, Deputy Attorney General, on the brief).
PER CURIAM
In these consolidated appeals, appellants Louis Pepe, Christopher
Barrella, James Boyle, and Richard Bizzari (collectively appellants) are fire
instructors who teach courses for first responders at the Morris County Public
Safety Training Academy (Academy). Pepe and Barrella were hired in 1994;
Boyle and Bizzari were hired in 1997. They remain on staff at the Academy.
None were enrolled in the Public Employees' Retirement System (PERS) as fire
instructors.
The terms of their employment required appellants to: (1) teach three-hour
modules; (2) instruct a minimum of twenty sessions or sixty hours per year; (3)
receive assignments from the Fire Training Coordinator or a supervisor, or by
individual instructor interest; and (4) make themselves available for replacement
and fill-in assignments.
Appellants generally worked from two and one-half to eight days per
month. They were provided with a tentative work schedule twelve months in
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advance and were required to select in advance the courses they would teach
during the coming year. Appellants were not paid a fixed annual salary—they
were paid per class.
In July 2001, Morris County benefits specialist Gayle Jones contacted the
Division of Pension and Benefits (Division) regarding PERS eligibility for
unidentified individuals whom she characterized as permanent on-call
employees. Jones informed the Division that the employees had passed the fire
instructor civil service examination and obtained permanent, on-call
appointments. Jones indicated there was no way to estimate their annual salary
because they were on-call employees. Although Jones asked the Division
whether these employees could have been enrolled in PERS, the Division
provided no formal response. However, a handwritten annotation on the bottom
of the letter stated, "told her to bring her fire instructors in as Perm[ament] when
they make $1,500.00." At that time, the minimum annual salary for PERS
enrollment was $1,500. See N.J.S.A. 43:15A-7(d)(1). Appellants never made
any employee contributions to PERS relating to their fire instructor positions.
In February 2006, Jones inquired about whether to enroll fire instructor
Bryan Oxford in PERS since he had not worked the 120 days per year required
for enrollment of on-call employees. In response, the Division informed Jones
A-2247-19
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that on call fire instructor's need to meet the on-call employee eligibility
requirements, which included working "at least 120 days within a [twelve]-
month period" and "meet[ing] the minimum annual salary" threshold. See
N.J.A.C. 17:2-2.3(a)(6); N.J.A.C. 17:2-2.10(a)(1).
On December 11, 2008, Pepe contacted the Division requesting an audit
and clarification concerning his PERS enrollment eligibility. By letter dated
January 10, 2009, Barrella contacted the Division requesting retroactive
enrollment in PERS from the date he began his employment as a fire instructor.
In January 2009, Jones informed the Division that the fire instructors had
"no regular schedule" and taught "when there [was] sufficient demand for their
particular subject." In July 2009, the Division requested "a monthly breakdown
reflecting the exact dates they worked" for each year listed, and that the monthly
breakdown "include the total salary earned for each month." Jones provided th e
requested information and provided a description of the fire instructors' work
schedules.
The Division found that the fire instructors were employed on an "as
needed" basis and their employment does not follow a regular predictable work
schedule. "Therefore, the enrollment criteria for these employees [are] the same
A-2247-19
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as on-call employees." The Division advised Jones of the following
requirements to enroll in PERS as on-call, as needed employees:
At employing locations where the regular work year is
12 months long, the employee must work at least 120
days within a 12[-]month period . . . before becoming
eligible for enrollment. The date of eligibility for
enrollment for an on-call employee would be the first
day of the [thirteenth] month after the commencement
of the 120[-]day period. The current annual minimum
salary required for enrollment eligibility is now $7,500
and it will increase to $7,700 in 2010.
On the same day, the Division informed Pepe that he worked as a fire
instructor "on an 'as needed' basis and [his] employment [did] not follow a
regular schedule." It further noted that "while [Pepe] met the minimum annual
salary requirements since 2004, [he had] not met the minimum number of days
required for enrollment in PERS." The Division sent a similar letter to Barrella.
On November 1, 2016, appellants' attorney wrote to Morris County
inquiring about appellants' PERS eligibility as fire instructors. He noted that
appellants "may not have been enrolled in PERS because they were categorized
as on-call employees." Counsel explained that appellants were "part-time"
employees who began working "prior to July 1, 2007" and "satisfied the earning
threshold under the PERS eligibility requirements." Counsel stated that "other
County employees, hired at the same time and for the same position, were placed
A-2247-19
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into PERS." After receiving no response, counsel sent two follow-up letters
inquiring about appellants' PERS eligibility.
On July 10, 2017, counsel wrote to the Division requesting clarification
as to appellants' "on-call" status and requesting retroactive enrollment in PERS.
On November 6, 2017, the Division requested employment verification forms
from Morris County for each year the fire instructors worked in that position.
On July 26, 2018, the Division received the information requested. At the
Division's request, appellants provided further information.
On October 11, 2018, the Division advised counsel that appellants were
not eligible for retroactive enrollment in PERS. The Division explained that
Pepe and Barrella were ineligible for enrollment in PERS from January 1, 1995,
to September 11, 2009, and Boyle and Bizzari were ineligible from December
14, 1996, to June 26, 2009.
Appellants contend they were hired as permanent, part-time fire
instructors and served for years with the expectation they would be enrolled in
PERS once they reached the minimum annual salary requirement. That did not
occur because the Division classified appellants as "on-call" employees and
denied their request for retroactive enrollment in PERS because appellants did
not occupy permanent, regularly budgeted positions at the Academy.
A-2247-19
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Appellants further contend the Division misinterpreted applicable statutes
and regulations by incorrectly classifying them as "on-call" employees, thereby
rendering them ineligible for PERS. They appealed the Division's denial of
membership in PERS, seeking an "adjudicatory hearing" as contested cases in
the Office of Administrative Law (OAL) pursuant to N.J.S.A. 43:15A-7.3.
On August 29, 2019, the Board of Trustees (Board) of PERS denied
appellants' requests for retroactive PERS enrollment, as well as their requests
for adjudicatory hearings. The Board's decisions rested, in large part, upon a
July 2001 exchange between the Division and Jones. The decision also
referenced an analysis conducted in 2009 in which the Division determined that
fire instructors "were employed on an 'as needed' basis and their employment
does not follow a regular predictable work schedule." Based on this
information, the Board analyzed the Appellants' PERS eligibility exclusively
under the regulations for "on-call" employees, N.J.A.C. 17:2-2.3(a)(6) and
N.J.A.C. 17:2-2.10(a)(1). The Board determined that appellants did not meet
the enrollment criteria for minimum annual salary, average number of days
worked per month, or hours worked per week. The Board also determined that
appellants' employment was not consistent with that of a regular part-time
employee with a continuous regular work schedule.
A-2247-19
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Appellants appealed the Board's determinations and again requested an
administrative hearing. Appellants proffered evidence in support of their claim
that they had been hired as "part-time" employees rather than "on-call"
employees, and that the fire instructor position was "permanent" rather than
"temporary." They argued that an evidentiary hearing was necessary to resolve
a factual issue related to their classification because other Morris County fire
instructors were enrolled in PERS.
On December 11, 2019, the Board determined there were no material facts
in dispute and directed the Board Secretary, in consultation with the Attorney
General's Office, to prepare Findings of Fact and Conclusions of Law, which
were presented and approved by the Board on January 15, 2019. The next day,
the Board issued four final administrative determinations denying ap pellants'
applications for retroactive enrollment in PERS.
The Board determined the fire instructor positions were "on-call" due to:
(a) the employment verification forms filed by Morris County's that indicated
appellants were "on call" part-time instructors; (b) the position's work schedule
being sporadic and unpredictable; (c) the limited number of days worked per
year and hours worked per week; and (d) the lack of continuous and regular
employment as established by attendance and payroll sheets.
A-2247-19
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After reviewing appellants' employment records, the Board found they
failed to meet the minimum annual salary requirement for several years, worked
less than 120 days per year, and worked less than 32 hours per week.1 In
reaching those conclusions, the Board made the following individual findings.
Pepe began working as a fire instructor at the Academy in 1994. He first
requested enrollment in PERS in December 2008 and sought retroactive
enrollment starting in 2004, the first year that he met the $1,500 salary threshold
for PERS eligibility. See Table 1 attached hereto. He also did not work at least
thirty-two hours per week. Ibid. In November 2009, the Division denied his
request for enrollment after determining that he failed to meet the 120 days
worked requirement. Pepe enrolled in PERS on December 1, 2011, when he
commenced employment as an Assistant Fire Marshall.
In April 2015, Pepe applied to purchase uncredited "on-call" service from
January 2003 through December 2011. In response to the Division's
informational request, Morris County submitted an employment form that
indicated Pepe was an "on-call" part-time, fire instructor during that period. The
Division denied his request after determining once again that his position as a
1
Effective May 21, 2010, PERS membership required local government
employees to work at least thirty-two hours per week. L. 2010, c. 1.
A-2247-19
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fire instructor was not eligible for PERS enrollment because he had not worked
the requisite number of days per year. The Division also determined that he did
not qualify for PERS enrollment "because he was employed less than thirty-two
hours per week."
The Board found his "sporadic work schedule to be temporary in nature."
The records showed that Pepe "averaged, at best, [five] days per month and he
did not work for several weeks or, on some occasions, for several months at a
time." In addition, "from 1994 to 2009, he average[d] less than [two and one-
half] days per month," and his salary decreased and increased by as much as [ten
to twenty percent] from year to year.
Barrella began working as a fire instructor in 1994. He first inquired about
PERS enrollment for his instructor position in 2009, but the Division denied his
request. Barrella requested retroactive enrollment starting in 1994. The
Division determined he was ineligible because he failed to meet the 120-day per
year requirement and failed to meet the salary threshold requirement for 1995,
2003, and 2005. See Table 2 attached hereto. He ultimately enrolled in PERS
on June 1, 2008, through his employment with Victory Gardens Borough.
In 2017, Barrella contacted the Division seeking reconsideration of the
Division's previous determination. The Division again denied his request and
A-2247-19
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further noted that his instructor position prior to 2010 was not eligible for PERS
service credit because he had not worked at least ten days per month in any year.
In addition, the Division explained that Barrella was not eligible for PERS as a
fire instructor after 2010 because he worked less than thirty-two hours per week.
Barrella then appealed the Division's determination to the Board.
The Board determined that Barrella did not meet the eligibility criteria for
PERS enrollment because "he [did] not have continuous, regularly scheduled
part-time employment." The Board concluded he worked on an as needed basis
because of his unpredictable work schedule, the limited number of days worked
per year, and his employer's classification of the fire instructor position as an
"on-call" position. Barrella averaged, "at best, [eight] days per month in one
year, and from 1994 through 2009, he averaged less than [two and one-half]
days per month." In addition, Barrella "did not work for several weeks or, on
some occasions, for several months at a time." His salary varied from year to
year and, in some instances, increased as much as 400 percent in one year and
decreased 30 percent in other years. The Board also found that, after May 2010,
Barrella worked less than thirty-two hours per week as a fire instructor.
Boyle requested retroactive enrollment in PERS starting in 1998. He
started working as a fire instructor in 1997 and exceeded the salary threshold
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requirement for the first time in 1998. See Table 3 attached hereto. Boyle failed,
however, to meet the salary threshold requirement in 2001, 2004, 2005, 2009,
and 2010. Ibid. The Division also determined that Boyle failed to meet the 120-
day per year requirement.
In 2017, Boyle sought reconsideration of the Division's determination, but
the Division again determined that Boyle was not eligible for PERS enrollment
because "he did not work for at least [ten] days per month in any year. After
2010, [his] service was not eligible for purchase because he was employed less
than [thirty-two] hours per week."
Boyle's employment records revealed that he "averaged, at best, [six] days
per month in one year, and from 1997 through 2009, he averaged approximately
[two and one-half] days per month." In addition, he "did not work for several
weeks or, on some occasions, for several months at a time." Moreover, Boyle's
salary varied from year to year by as much as 500 percent in one year and
decreasing by 50 percent in another. He "failed to meet the earnings threshold
for two consecutive years, in both 2004-2005 and 2009-2010, . . . [and] a break
in service of two years or more would preclude his purchase of the previous
periods of service in which he did meet the earnings threshold." Ibid. Lastly,
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after 2010, Boyle failed to work the required number of hours per week for
PERS enrollment.
Bizzari requested membership in PERS retroactive to 2004. He started
working as a fire instructor in 1997 but did not exceed the salary threshold
requirement for PERS until 2002. See Table 4 attached hereto. He then failed
to meet the salary threshold requirement in 2003 and 2004. Ibid. Bizzari failed
to meet the 120-day per year requirement and the minimum salary requirement
from 1997 through 2001 and from 2003 through 2004. See ibid.
In 2017, Bizzari sought reconsideration of the Division's determination,
but the Division again determined that Bizzari was not eligible for PERS
enrollment. Bizzari's "service prior to 2010 was not eligible for PERS service
credit [because] he did not work for at least [ten] days per month in any year.
After 2010, [his] service was not eligible for purchase because he was employed
less than [thirty-two] hours per week."
Bizzari's employment records revealed that he "averaged, at best, [three]
days per month in one year, and from 1997 through 2009[,] he averaged less
than [one and one-half] days per month." Bizzari also "did not work for several
weeks or, on some occasions, for several months at a time." Additionally,
Bizzari’s salary varied from year to year, "in some instances increasing as much
A-2247-19
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as 300 [to] 400 percent in one year, while decreasing by 50 [to] 75 percent in
other years." See Table 3.
These appeals followed and were consolidated. Appellants challenge the
Board's final administrative determinations and seek an order compelling
retroactive enrollment in PERS. Appellants argue:
POINT ONE
THE DIVISION'S INTERPRETATION OF THE
GOVERNING STATUTES AND REGULATIONS IS
A LEGAL ISSUE THAT MUST BE REVIEWED DE
NOVO.
POINT TWO
APPELLANTS ARE ELIGIBLE FOR
RETROACTIVE PERS ENROLLMENT BASED ON
THEIR STATUS AS PERMANENT, PART-TIME
EMPLOYEES.
A. The Division's Interpretation of N.J.A.C.
17:2-2.3(A) (6) is Inaccurate Because Appellants'
Part-Time Fire Instructor Position is Regularly
Budgeted by the County.
B. As Permanent Employees Occupying
Regularly Budgeted Positions, Appellants Have
Long Been Eligible for Enrollment in PERS.
After careful review of the record and the applicable statutes, regulations,
and case law, we find no merit in these arguments and affirm.
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Our scope of review of an administrative agency's final determination is
limited. In re Herrmann, 192 N.J. 19, 27 (2007). "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." Id. at 27-28. The burden of proving a decision was arbitrary,
capricious, or unreasonable is on the party challenging the agency action.
Lavezzi v. State, 219 N.J. 163, 171 (2014) (citing In re J.S., 431 N.J. Super. 321,
329 (App. Div. 2013)).
When reviewing an agency decision, we examine (1) whether the agency
action violated "express or implied legislative policies," (2) whether there is
substantial evidence in the record to support the agency's decision, and (3)
whether in applying the law to the facts, the agency reached a conclusion "that
could not reasonably have been made on a showing of the relevant factors."
Allstars Auto Grp., Inc. v. N.J. Motor Vehicle Comm'n, 234 N.J. 150, 157
(2018). Where an agency's decision satisfies these criteria, we accord
substantial deference to the agency's fact-finding and legal conclusions,
recognizing "the agency's 'expertise and superior knowledge of a particular
field.'" Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J.
A-2247-19
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1, 10 (2009) (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500,
513 (1992)).
"[T]he statutes governing the retirement systems make clear that, although
a person eligible for benefits is entitled to a liberal interpretation of a pension
statute, 'eligibility [itself] is not to be liberally permitted.'" In re Adoption of
N.J.A.C. 17:1-6.4, 17:1-7.5 & 17:1-7.10, 454 N.J. Super. 386, 399 (App. Div.
2018) (second alteration in original) (quoting Smith v. Dep't of Treasury, Div.
of Pensions & Benefits, 390 N.J. Super. 209, 213 (App. Div. 2007)). "Instead,
. . . the applicable guidelines must be carefully interpreted so as not to 'obscure
or override considerations of . . . a potential adverse impact on the financial
integrity of the [f]und.'" Smith, 390 N.J. Super. at 213 (alterations in original)
(quoting Chaleff v. Teachers' Pension & Annuity Fund, 188 N.J. Super. 194, 197
(App. Div. 1983)). Accord DiMaria v. Bd. of Trs., Pub. Emps.' Ret. Sys., 225
N.J. Super. 341, 354 (App. Div. 1988). The burden to establish pension
eligibility is on the applicant. Patterson v. Bd. of Trs., State Police Ret. Sys.,
194 N.J. 29, 50-51 (2008).
With these principles in mind, we analyze whether the Board's final
administrative determinations were supported by substantial evidence in the
A-2247-19
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record or were arbitrary, capricious, or unreasonable. Appellants did not satisfy
that burden.
N.J.S.A. 43:15A-7 governs PERS enrollment eligibility. "Before or on
November 1, 2008, no person in employment, office or position, for which the
annual salary or remuneration is fixed at less than $1,500.00, shall be eligible to
become a member of the retirement system." N.J.S.A. 43:15A-7(d)(1). "After
November 1, 2008, a person who was a member of the retirement system on that
date and continuously thereafter shall be eligible to be a member of the
retirement system in employment, office or position, for which the annual salary
or remuneration is fixed at $1,500 or more." N.J.S.A. 43:15A-7(d)(2).
Following the enactment of L. 2010, c. 1, local government employees must
work thirty-two hours per week to become eligible for enrollment in PERS.
N.J.A.C. 17:2-2.1(b)(3).
Temporary employees with at least one year's continuous service also
qualify for enrollment. N.J.S.A. 43:15A-7(b). However, "temporary
employment that is not continuous[]" does not meet the eligibility requirement
for enrollment in PERS. N.J.A.C. 17:2-2.3(a)(6). "Any person not in the career,
senior executive, and unclassified service, or a regular budgeted position, who
is employed on an on-call basis and works on average less than [ten] days a
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month throughout the regular work year of the employer" is ineligible for
enrollment in PERS. Ibid."On-call employees have unpredictable work schedules and their
employment is usually temporary in nature." N.J.A.C. 17:2-2.10(a). Although
"on-call" employees are "eligible to enroll in the PERS at the beginning of the
[thirteenth] month of continuous employment," they must still meet "all other
eligibility requirements[,] . . . including the achievement of a fixed minimum
number of regular hours of [thirty-two] hours per week, pursuant to the
provisions of N.J.S.A. 43:15A-7." Ibid. In addition, "on-call" employees "must
work at least 120 days within a [twelve]-month period (10 days per month x 12
months) before becoming eligible for enrollment" in PERS. N.J.A.C. 17:2-
2.10(a)(1).
Appellants argue that they were permanent, part-time employees and
should not have been classified as "temporary" or "on-call" employees.
Appellants posit employees occupying "regularly budgeted positions," such as
themselves, need not meet the ten-day per-month requirement applicable to on-
call employees, who are generally ineligible for PERS enrollment. Appellants
note that the County's Fire Instructor Agreement expressly refers to their fire
instructor position as "part-time" employees and that none of the documents
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associated with the hiring process suggested that the position was classified as
"temporary" or "on-call."
Appellants further argue they were permanent employees because "the
Division expressly instructed the County to enroll the fire instructors as
permanent employees once they met the [$1500] annual salary threshold."
Appellants also note that they were classified as permanent employees by Morris
County and the Municipal Personnel System because they passed the NJDOP
civil service examination. Moreover, appellants contend they were not "on-call"
employees despite having an unpredictable work schedule because appellants
selected their schedule several months in advance. Appellants claim that since
they are permanent employees, they became eligible for enrollment in PERS
when they met the minimum annual salary requirement of $1,500 under N.J.S.A.
43:15A-7(d)(1) and N.J.A.C. 17:2-2.1(b)(1).
We are unpersuaded by these arguments. The record reveals that
appellants were not "regularly budgeted" employees because they had no fixed
schedule, salary, or remuneration. Jones explained she was unable to calculate
an annual salary for fire instructors because she did not know how many hours
they would work in any given year. Moreover, as we have noted, appellants'
employment only required them to instruct a minimum of twenty sessions or
A-2247-19
20
sixty hours per year. Appellants were not paid a fixed annual salary but were
instead paid per class or assignment.
In addition, appellants are properly considered "on-call" employees for
purposes of N.J.A.C. 17:2-2.3(a)(6) or N.J.A.C. 17:2-2.10(a)(1). Their work
schedules varied from year to year and were not predictable. They did not work
at least 32 hours per week or 120 days per year. See Tables 1-4. Moreover, in
certain years they earned less than $1,500. Ibid.Notably, even though appellants were required to instruct a minimum of
20 sessions or 60 hours per year, these requirements in no way ensured that
appellants would meet the 120-day per year requirement or the minimum salary
threshold requirements under N.J.S.A. 43:15A-7 and N.J.A.C. 17:2-2.10(a). In
fact, they only worked a few days per month, failed to work 120 days per year,
and in certain years failed to meet the $1,500 minimum annual salary
requirement. See Tables 1-4.
Therefore, notwithstanding appellants' characterization of their position
as "permanent" or "part-time," they are ineligible for enrollment in PERS
because they did not hold regularly budgeted positions, they had unpredictable
work schedules, and they worked less than ten days per month. See N.J.A.C.
17:2-2.3(a)(6). Moreover, after 2010, appellants were also ineligible for
A-2247-19
21
enrollment because they worked less than thirty-two hours per week. See
N.J.S.A. 43:15A-7(d)(4); N.J.A.C. 17:2-2.1(b)(3). Therefore, the Board's
determinations are consonant with the plain meaning of the applicable statutes
and regulations.
We next turn to the question of whether the Board's motion for summary
decision should have been denied because there was a genuine issue of material
fact regarding appellants' classification as on-call employees, since other
similarly situated Morris County fire instructors were enrolled in PERS.
A summary decision may be made if the pleadings,
discovery and affidavits "show that there is no genuine
issue as to any material fact challenged and that the
moving party is entitled to prevail as a matter of law."
N.J.A.C. 1:1-12.5(b). Once the moving party presents
sufficient evidence in support of the motion, the
opposing party must proffer affidavits setting "forth
specific facts showing that there is a genuine issue
which can only be determined in an evidentiary
proceeding." Ibid. This standard is substantially the
same as that governing a motion under Rule 4:46-2 for
summary judgment in civil litigation. Frank v. Ivy
Club, 228 N.J. Super. 40, 62 (App. Div. 1988), rev'd on
unrelated grounds, 120 N.J. 73 (1990). Under this
standard, the court or agency must determine "whether
the competent evidential materials presented, when
viewed in the light most favorable to the non-moving
party in consideration of the applicable evidentiary
standard, are sufficient to permit a rational factfinder to
resolve the alleged disputed issue in favor of the non-
moving party." Brill v. Guardian Life Ins. Co., 142 N.J.
520, 523 (1995). "If there exists a single, unavoidable
A-2247-19
22
resolution of the alleged disputed issue of fact, that
issue should be considered insufficient to constitute a
'genuine' issue of material fact." Id. at 540.
[Contini v. Bd. of Educ. of Newark, 286 N.J. Super.
106, 121-22 (App. Div. 1995).]
The controlling facts as to all four appellants were not in dispute. The
annual salary, number of hours worked per week, number of days worked per
year, and the manner in which appellants' work was scheduled, were not
contested. Applying the PERS enrollment criteria to those established facts did
not require an evidentiary hearing. Accordingly, summary decision was
appropriate.
Moreover, appellants' reliance on the PERS enrollment of other fire
instructors is misplaced. Appellants are only appealing the Board's
determination of their eligibility for enrollment. "[O]nly the [agency rulings] or
parts thereof designated in the notice of appeal are subject to the appellate
process and review." Pressler & Verniero, Current N.J. Court Rules, cmt. 5.1
on R. 2:5-1(e)(1) (2022); see also 1266 Apartment Corp. v. New Horizon Deli,
Inc., 368 N.J. Super. 456, 459 (App. Div. 2004) (same) (citing Sikes v. Twp. of
Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff'd o.b., 138 N.J. 41(1994)). Because the other fire instructors are not parties to these consolidated
appeals and their alleged enrollment in PERS is not before us, we decline to
A-2247-19
23
address it. Belmont Condo. Ass'n v. Geibel, 432 N.J. Super. 52, 98 (App. Div.
2013). In any event, eligibility for PERS enrollment is highly fact sensitive.
In sum, we discern no basis for disturbing the Board's decisions. Applying
appropriate deference to the Board's "interpretation and implementation of its
rules enforcing the statutes for which it is responsible," In re Freshwater
Wetlands Prot. Act Rules, 180 N.J. 478, 489 (2002), the Board's decisions,
which were based on undisputed evidence in the record, were not arbitrary,
capricious, or unreasonable.
Affirmed.
A-2247-19
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TABLE ONE
LOUIS PEPE
Morris County personnel records reveal the number of days worked by
Pepe and the salary he earned as a fire instructor from 1994 through 2011:
YEAR Days Worked Salary
1994 (not avail.) $779.00
1995 22 days $1,157.00
1996 13 days $767.00
1997 17 days $885.76
1998 9 days $374.92
1999 4 days $288.12
2000 0 days $0.00
2001 11 days $809.44
2002 14 days $1,200.62
2003 15 days $(not avail.)
2004 53 days $4,883.90
2005 54 days $4,252.80
2006 52 days $6,120.91
2007 63 days $7,478.42
2008 51 days $7,376.39
2009 51 days $9,016.36
2010 (not avail.) $7,376.39
2011 (not avail.) $9,016.36
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TABLE TWO
CHRISTOPHER BARRELLA
Morris County personnel records reveal the number of days worked by
Barrella and the salary he earned as a fire instructor from 1994 through 201 0:
YEAR DAYS WORKED SALARY
1994 (not avail.) $1,677.00
1995 17 days $1,001.00
1996 32 days $1,885.00
1997 31 days $2,300.81
1998 24 days $1,726.14
1999 25 days $2,052.65
2000 26 days $1,962.90
2001 16 days $1,705.00
2002 14 days $1,808.48
2003 5 days $421.10
2004 16 days $2,109.46
2005 12 days $1,404.35
2006 34 days $6,665.89
2007 54 days $9,618.09
2008 79 days $11,845.72
2009 54 days $10,946.60
2010 (not avail.) $7,025.39
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TABLE THREE
JAMES BOYLE
Morris County personnel records reveal the number of days worked by
Boyle and the salary he earned as a fire instructor from 1994 through 2010:
YEAR DAYS WORKED SALARY
1997 17 days $749.84
1998 35 days $2,045.16
1999 35 days $2,112.11
2000 33 days $2,177.89
2001 23 days $1,370.98
2002 27 days $1,663.74
2003 32 days $2,518.92
2004 23 days $1,474.98
2005 11 days $872.98
2006 57 days $6,540.10
2007 48 days $6,284.50
2008 69 days $6,912.47
2009 5 days $1,336.00
2010 (not avail.) $824.40
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TABLE FOUR
RICHARD BIZZARI
Morris County personnel records reveal the number of days worked by
Bizzarri and the salary he earned as a fire instructor from 1994 through 201 0:
YEAR DAYS WORKED SALARY
1997 14 days $749.84
1998 23 days $1,263.00
1999 29 days $1,375.00
2000 15 days $880.23
2001 16 days $984.00
2002 20 days $1,638.00
2003 10 days $937.00
2004 13 days $1,062.00
2005 18 days $1,703.00
2006 38 days $4,253.00
2007 29 days $3,497.00
2008 11 days $1,014.00
2009 12 days $1,578.00
2010 (not avail) $7,025.39
A-2247-19
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