Opinion
DOCKET NO. A-2956-12T1
07-08-2014
JOHN G. HOLL, Petitioner-Appellant, v. BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM, Respondent-Respondent.
Daniel Louis Grossman argued the cause for appellant. Jeff S. Ignatowitz, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Ignatowitz, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez and Carroll.
On appeal from the Department of the Treasury, Division of Pensions and Benefits, Docket No. 2-10-183991.
Daniel Louis Grossman argued the cause for appellant.
Jeff S. Ignatowitz, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Ignatowitz, on the brief). PER CURIAM
Petitioner John G. Holl appeals from a final decision of the Board of Trustees (Board) of the New Jersey Public Employees' Retirement System (PERS), denying him prior service credit for enhanced pension benefits under the Prosecutor's Part. The Prosecutor's Part of PERS went into effect January 7, 2002, N.J.S.A. 43:15A-156. We reverse.
In order to be included, petitioner must be: "(2) the Director of the Division of Criminal Justice in the Department of Law and Public Safety; (3) an assistant director, deputy director, assistant attorney general or deputy attorney general in that department and assigned to that division pursuant to P.L. 1970 c. 74." N.J.S.A. 43:15A-155. Petitioner contends that he falls within the statutory definition, as a matter of law, given the facts and circumstances of his career at the Department of Law and Public Safety (LPS). We also address his claim that the Department of Treasury, Division of Pensions & Benefits (Division of Pensions) is, in any event, equitably estopped from denying him the benefits he seeks. The Division of Pensions is responsible for the administration of the State's retirement systems. N.J.S.A. 52:18A-95 to -100.
I.
The LPS was established by statute in 1948. The Attorney General oversees the divisions within the LPS, N.J.S.A. 52:17A-2, and has the express authority to establish an administrative unit, known as the Office of Attorney General (OAG), which is separate from the divisions within the department. N.J.S.A. 52:17B-3. The Attorney General is also authorized to supervise and administer the divisions within the LPS at his or her discretion. N.J.S.A. 52:17B-4(e); see also N.J.S.A. 52:17B-27. The Division of Criminal Justice (DCJ) is one of those divisions. N.J.S.A. 52:17B-99.
Under the Criminal Justice Act of 1970, the criminal business of the State is prosecuted by both the Attorney General and county prosecutors. N.J.S.A. 2A:158-4. The Attorney General acts with regard to "the enforcement and prosecution of the criminal business of the State" through DCJ. N.J.S.A. 52:17B-101. The DCJ is organized and staffed by the Attorney General at his or her discretion. N.J.S.A. 52:17B-100. The director of the DCJ is appointed by, and serves at, the pleasure of the Attorney General. N.J.S.A. 52:17B-99. Before the enactment of N.J.S.A. 43:15A-156(a), DCJ staff were enrolled in PERS, receiving the same benefit as other PERS members. Those persons eligible for Prosecutor's Part benefits as of January 7, 2002, who had prior PERS credit, were entitled to have their prior service in DCJ transferred as of that date. N.J.A.C. 17:2-8.1.
Pursuant to P.L. 2010, c. 1, those included in the definition of prosecutor entering service after May 21, 2010, are again enrolled in PERS as the Prosecutor's Part program was thereafter discontinued.
II.
On December 26, 2008, the Division of Pensions informed petitioner that, "[b]ased upon information provided by the [LPS] . . . [he] [was] not eligible for participation in the Prosecutor Part of PERS." That determination followed the Division of Pensions' review, which began commencing sometime in November 2006, of all those who had been deemed included in the Prosecutor's Part. The review, in turn, was triggered by the legal opinion of former Attorney General Zulima V. Farber, issued August 30, 2006, which we describe in greater detail below.
Upon receiving notification, petitioner appealed to the Board. Since the Board, by letter dated March 22, 2010, indicated it was inclined to affirm the Division of Pensions' conclusion, the matter was transferred to the Office of Administrative Law (OAL) as a contested case. N.J.S.A. 52:14B-1. After an evidentiary hearing, the administrative law judge (ALJ) found petitioner qualified for the Prosecutor's Part benefits as of January 7, 2002, but not thereafter. Both sides filed exceptions.
The Board remanded for further consideration as to whether the Division of Pensions was estopped from denying petitioner benefits. The ALJ subsequently rendered a further opinion that, in the absence of detrimental reliance, the Division of Pensions was not equitably estopped from refusing Prosecutor's Part pension benefits to petitioner. While adopting the ALJ's findings of fact, the Board on January 31, 2013, found the ALJ's determination as to petitioner's eligibility to be flawed, in significant part, because it relied on a certification of former Attorney General John J. Farmer, Jr., which the Board characterized as inadmissible hearsay. Thus it found petitioner ineligible. The Board adopted the ALJ's conclusion, however, that petitioner had not demonstrated equitable estoppel. This appeal followed.
Some further background is necessary. On February 24, 2003, former Attorney General Peter C. Harvey created a controversial list of thirty LPS employees whom he believed should be included in the Prosecutor's Part, a step that created substantial controversy. Thereafter, in June 2004, a regulation, N.J.A.C. 17:2-8.2, was adopted expanding the criteria for those eligible for Prosecutor's Part benefits. On August 30, 2006, as we have said, Attorney General Farber issued a legal opinion that the 2004 regulation was invalid because it permitted employees other than those included in the statute to participate in Prosecutor's Part benefits by expanding the definition of "prosecutor."
III.
The following facts and circumstances were developed during the course of the administrative law hearing. Petitioner became a deputy attorney general assigned to DCJ in 1983. In March 1995, he became the Acting Director of the Alcoholic Beverage Control (ABC). He returned to the Division of Law as a Deputy Attorney General "for about a year, basically, calendar year 2000." At the end of that calendar year, petitioner met with former Attorney General John Farmer, who asked if petitioner would consider transferring to DCJ. His new role would be to advance the attorney general's agenda regarding DCJ policy issues and cases in the final year or two of his administration. When asked to specify what this involved, petitioner said he worked in the areas of racial profiling, including potential perjury by officers on search and seizure issues, DNA testing, gang initiatives, and procedures to be followed for eyewitness identification. Petitioner's unqualified testimony was that, except for his time in the ABC, and the year that followed in the Division of Law, 2000, he was a "criminal justice guy." His belief stemmed not only from the substantive work assigned to him, but the fact that after his year in the Division of Law, his salary was again paid out of DCJ funds, as it had been between the commencement of his employment in 1983 until his transfer to the ABC twelve years later.
During his assignment with Attorney General Farmer, petitioner was directly involved with other law enforcement agencies. He testified this work continued from late 2000 into 2002. Admittedly, petitioner sat on the eighth floor of the Justice Complex, as opposed to the fifth floor, where the DCJ office was located. He explained that the offices on the eighth floor were for those individuals "who had different assignments from various other divisions to act as the [A]ttorney [G]eneral's -- liaisons, ambassadors, and implementors of his policies . . . [and he] was the [c]riminal [j]ustice person." At the administrative law hearing, petitioner also produced records, including documents transferring him back onto the DCJ payroll effective February 24, 2001, and an "advancement request" moving him back into DCJ.
When first employed, petitioner was paid from DCJ funds until his transfer to the ABC, then to the Division of Law for a year. Thereafter, he was again paid from DCJ funds.
--------
Petitioner also introduced into evidence a May 3, 2003 statement issued by the Division of Pensions. That document advised him that "because of [his] service for a few years in ABC and one year in [the Division of Law] . . . [he] would have to buy back [his] purchase credit for those years." Petitioner claimed that he purchased the Prosecutor's Part credit "in full" but has never received a refund.
Petitioner testified that when he received notice in 2006 that his eligibility for Prosecutor's Part benefits, like that of others, was being reviewed by the Division of Pensions, he was not concerned. He understood the review to have included everyone in the DCJ in light of the problems with the regulation, N.J.A.C. 17:2-8.2, and the "Harvey thirty." Additionally, he said he was not concerned "because there was never any question in [his] mind that [he] was part of the Prosecutor's Part."
On March 11, 2008, the Division of Pensions advised petitioner that he was eligible to buy back time from April 1983 to August 1983, which would be credited towards his Prosecutor's Part benefits. Additionally, on March 18, 2008, the Division of Pensions responded to petitioner's notice of intent to retire with a quotation of benefits from the Prosecutor's Part. His tentative plans for retirement were ultimately cancelled, resulting in additional correspondence from the Division of Pensions dated April 16, 2008, and April 24, 2008, acknowledging additional lump sum purchases of service credit in the Prosecutor's Part.
On May 2, 2008, and May 21, 2008, when petitioner again considered retirement, the Division of Pensions approved it within the Prosecutor's Part. Petitioner introduced into evidence a somewhat puzzling exhibit — a Division of Pension form found in petitioner's personnel file, dated November 7, 2008, titled "change of position form." It purported, in Kafkaesque fashion, to change his position title from "Assistant Attorney General" to "Assistant Attorney General." No difference whatsoever between the two designations is indicated on the document.
Petitioner explained that after the horrific events of September 11, 2001, Attorney General Farmer assigned him to coordinate the State's response to New Jersey victims, including the collection of DNA samples, notification of available services as they were considered crime victims, and the detection of fraudulent applications for benefits. Later, the Office of Recovery and Victim Assistance (ORVA) came into being. Petitioner testified that as of the effective date of the Prosecutor's Part enabling legislation, January 7, 2002, however, he "was not really assigned to ORVA." ORVA had been initially created by executive order on September 17, 2001, and was continued by a second executive order. Petitioner testified that he worked directly with ORVA in the latter part of 2002, but prior to that time he "was focus[ed] more from a departmental point of view to provide and direct victims' services . . . ." Although he never did so, he was authorized to present cases to the state grand jury.
When asked on cross-examination regarding the prosecution of cases resulting from September 11, petitioner responded that he was involved "in the collection of information and coordination of investigations." In 2004, the direct victim services he was providing were merged with ORVA.
Months after Attorney General Farber's August 30, 2006 communication to PERS regarding the asserted illegality of N.J.A.C. 17:2-8.2, on October 20, 2006, petitioner emailed her successor inquiring about his proposal to transfer ORVA to the Office of Homeland Security. In his email, petitioner expressed his concern that his pension enrollment in the Prosecutor's Part "not be adversely affected," and that if ORVA was transferred, "that would jeopardize [his] status." He wanted an opportunity to "discuss" other alternatives to preserve his title and enrollment in the Part.
Petitioner also moved into evidence a certification by Attorney General Farmer stating:
2. In early 2001, I met with John G. Holl, to discuss a possible transfer for him from the Division of Law to work in Trenton. After meeting with Mr. Holl, I becameIn response to petitioner's application to move this exhibit into evidence for the ALJ's consideration, the ALJ asked if there were any objections to that or the other exhibits. The Deputy Attorney General handling the matter on behalf of the Division of Pensions stated: "Yes. I mean, it's a certification. He has testified in these cases before so we'd ask that be given the weight it deserves without a cross examination."
convinced that his lengthy departmental experience in the criminal justice area could be an asset in my management of the department.
3. In February, 2001, I arranged that Mr. Holl be assigned as the Assistant Attorney General in charge of policy and planning for the department. Because of his extensive background in criminal justice, his assignment was to coordinate the following criminal justice issues and report directly to me: anti-gang initiatives; DNA testing of convicted criminals; racial profiling, photo line-ups of criminal suspects, Division of Criminal Justice staffing issues, and many others.
4. AAG Holl was reporting directly to me, but assigned to the Division of Criminal Justice. In that capacity, he worked closely, at my behest, with the then Director of the Division, Kathryn Flicker. This is the situation that existed on January 7, 2002.
5. After the attacks of September 11th, I assigned AAG Holl to oversee departmental operations at the Family Assistance Center. Over 700 New Jerseyans were killed in the September 11th Attacks. They and their surviving family members are crime victims. AAG Holl coordinated the delivery of victim services from shortly after the Attacks and up to and after January 7, 2002.
6. I make this affidavit in support of AAG Holl's inclusion into the Prosecutor's Part of PERS.
During the OAL hearing, the Division of Pensions introduced a December 2001 organizational table in which petitioner was described as an assistant attorney general answerable to the First Assistant Attorney General, not to the Director of DCJ. A supplemental explanatory list from that time explained petitioner's position as an assistant attorney general who "handles matters and special projects [] assigned by the Attorney General or First Assistant Attorney General."
IV.
Our scope of review in an appeal from the final decision of an administrative agency is limited. In re N.J. Dept't of Envtl. Prot. Conditional Highlands Applicability Determination, 433 N.J. Super. 223, 235 (App. Div. 2013) (citing Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009)). The court "must sustain the agency's action in the absence of a 'clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record[.]'" Ibid. (quoting Circus Liquors, supra, 199 N.J. at 9). On questions of law, review is de novo. Ibid. (quoting Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27, (2011)).
The focus when interpreting statutes is on "effectuat[ing] the legislative intent in light of the language used and the objects sought to be achieved." Krayniak v. Bd. of Trs., 412 N.J. Super. 232, 237 (App. Div. 2010) (quoting McCann v. Clerk of Jersey City, 167 N.J. 311, 320 (2001) (internal citations omitted)). We ascertain whether the statutory intent is "expressed in plain language that, in accordance with ordinary meaning, clearly and unambiguously yields only one interpretation." Id. at 238 (internal citations omitted). And, "[i]f the language is plain and clearly reveals the meaning of the statute, the court's sole function is to enforce the statute in accordance with those terms." Ibid. (internal citations and quotations omitted).
V.
We disagree with the Board's determination that as a matter of law, petitioner was not entitled to Prosecutor's Part benefits. Nor do we consider the Board's rejection of Attorney General Farmer's certification to have been proper. Under the doctrine of invited error, since the Division of Pensions acquiesced to the admission of the document as an exhibit in evidence, it cannot now claim it contained excludable hearsay. Nothing in the record indicates that Attorney General Farmer, had the Division of Pensions objected, could not have been called as a witness, or if unavailable on that date, that the hearing could not have been rescheduled in order to allow him the opportunity to testify. Additionally, had the Division of Pensions objected, the ALJ could have determined whether the certification was admissible under the residuum rule.
Under the residuum rule, N.J.A.C. 1:1-15.5 "[s]ubject to the discretion of the ALJ, hearsay evidence is admissible in a contested case . . . . [but] notwithstanding the admissibility of hearsay evidence, some legally competent evidence must exist to support each ultimate finding of fact to an extent sufficient to provide assurances of reliability." ZRB, LLC v. N.J. Dep't of Envt'l Prot., 403 N.J. Super. 531, 557 (App. Div. 2008) (internal citations and quotations omitted). The ALJ may have found that petitioner's own testimony sufficed as corroboration of Attorney General Farmer's certification, as it was competent proof of the nature of his assignments. Or the ALJ may have found that payment of petitioner's salary from DCJ funds was legally competent and corroborative of Attorney General Farmer's flat assertion that although petitioner "was reporting directly to [him, he was] assigned to the Division of Criminal Justice . . . [and] worked closely, at [his] behest, with the then Director of the Division, Katheryn Flicker." Since the exhibit was admitted without objection, however, the ALJ had no opportunity to make any findings as to the residuum rule, or whether the document was otherwise admissible.
The linchpin of the doctrine of invited error is one of fundamental fairness. In this case, that consideration is an appropriate basis for allowing reliance on the certification. At the administrative hearing, no objection whatsoever was raised by the agency's representative. It was only when the Board issued its final decision, after the administrative hearings were closed, and based on the record of those proceedings, that the admissibility of the document was questioned and found to be excludable.
"Where an allegedly aggrieved party not only does not object at trial but by his own conduct endorses the action taken, he may not be heard on appeal to label that action as plain error." Venuto v. Lubik Oldsmobile, Inc., 70 N.J. Super. 221, 229 (App. Div. 1961) (internal citations and quotations omitted). We therefore conclude the Board's characterization of the certification as excludable hearsay was mistaken. The document is, as a result, properly included in the ALJ's analysis and our own in determining petitioner's legal entitlement.
That the Board rejected the certification on its own initiative, as opposed to as a result of an argument raised by the Division of Pensions, does not render the doctrine of invited error inapplicable. The doctrine of invited error has been applied "in a wide variety of situations." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340 (2010).
In this case, Attorney General Farmer's evidence was crucial. He had the statutory authority to organize the LPS and DCJ at his discretion, and to staff the division at his discretion. See N.J.S.A. 52:17B-3; -4B; -27. If Attorney General Farmer wished to assign petitioner to the DCJ as his "point person" for criminal justice issues, free of the administrative or other bureaucratic responsibilities which burden the DCJ Director, for example, he had the authority to do so. Even if petitioner reported to him directly, or to the First Assistant Attorney General, it seems to us that Attorney General Farmer clearly had the discretion to employ a DCJ staff person simultaneously in that capacity and as his "point person." And his assumption that petitioner had thus been returned to serve in the DCJ is supported by the fact that petitioner's salary was thereafter paid out of DCJ's budget.
Our conclusion that as a matter of law, petitioner is entitled to a Prosecutor's Part pension as he was eligible on January 7, 2002, is further informed by Francois v. Board of Trustees, 415 N.J. Super. 335 (App. Div. 2010). In that case, Francois was an employee of the New Jersey Economic Development Authority (EDA). Id. at 338. He served on "mobility assignment" as director of the real estate department of the Port Authority of New York and New Jersey (Port Authority). Ibid.
Francois was advised in writing "that his pension would not be impaired during the period of assignment, and the employer continued to pay his salary during that period." During the assignment, his salary was substantially increased. Id. at 343. Francois eventually advised EDA that he intended to retire from the agency and join the Port Authority as its employee. Id. at 344. He was eligible for early retirement without penalty. Ibid.
In assessing whether that petitioner continued to be an employee of the EDA, and was therefore entitled to PERS benefits, we examined various factors, including the source of Francois's wages. Id. at 351-52. He had been assured by EDA "that his pension would not be adversely affected by the assignment." Id. at 352. Francois had no direct contact with PERS, only with his immediate employers at EDA. Ibid. There was no question of fraud or "a scheme developed for pension purposes." Id. at 353.
We observed that "there [was] no doubt [that] New Jersey had a great interest after the September 11th attacks in working with its Port Authority in redeveloping the World Trade Center and promoting real estate development throughout the region. The times permitted some fluidity, including in the use of personnel." Ibid. We concluded that the petitioner, although he should have questioned whether his pension would include the higher salary for which he was eligible only while working at the Port Authority, had no reason to believe that his mobility assignment would not be credited as EDA services, or that he would be penalized by accepting the mobility assignment so long as his pay came from the EDA payroll. Ibid. As a result, we found that "despite our limited scope of review, . . . [and] in the absence of a finding of bad faith, the PERS Board erred by denying petitioner service credit for his time on mobility assignment." Id. at 353-54. The decision was essentially "a legal determination based on undisputed facts." Id. at 354. We limited the wages eligible for pension benefits calculations to the annual compensation Francois would have received had he remained with EDA during that period. Id. at 358.
The similarities to this case are striking. Petitioner was assigned to serve a function necessitated by the September 11 attacks. Those were indeed times that called for great "fluidity" and an investment on the part of government resources to aid the 700 or so New Jersey families identified as victims of that event. That Attorney General Farmer would have wanted his "ambassador" from DCJ, an attorney with years of experience in government, to add these responsibilities to his job is no surprise and did not strip petitioner of his DCJ status.
Although in Francois, the petitioner had written assurances from EDA that his mobility assignment would not affect his pension, in this case, this petitioner had no reason to doubt his ongoing employment included Prosecutor's Part pension benefits. After all, he was paid by the DCJ.
Just as in Francois, there is no suggestion that petitioner was involved in any scheme to manipulate his situation for pension reasons or in order to defraud the pension system. If anything, his conduct was that of an employee who relied on the designation on his biweekly paycheck, as opposed to the petitioner in Francois, who understood the potential for loss of benefits and, as a result, asked for specific written assurances of continued eligibility.
In the final analysis, the only evidence the Division of Pensions proffered to refute petitioner's contentions were the organizational tables of hierarchy promulgated by Attorney General Farmer, which showed petitioner reported, not to the Director of DCJ, but to the First Assistant Attorney General or to the Attorney General himself. The Division of Pensions also introduced petitioner's State identification card, issued February 26, 2001, describing him as an assistant attorney general. But that evidence cannot be dispositive when weighed against all the other more consequential proofs petitioner presented.
VI.
We also conclude that petitioner is eligible for Prosecutor's Part benefits under the doctrine of equitable estoppel. The doctrine requires proof of "a misrepresentation or concealment of material facts, known to the party allegedly estopped and unknown to the party claiming estoppel, done with the intention or expectation that it will be acted upon by the other party and on which the other party does in fact rely in such a manner as to change his position for the worse." Carlsen v. Masters, Mates & Pilots Pension Plan Trust, 80 N.J. 334, 339 (1979); see also In re Johnson, 215 N.J. 366, 378-79 (2013). The reliance must be "reasonable and justifiable" and the burden of proof is on the party asserting the estoppel. Foley Mach. Co. v. Amland Contractors, Inc., 209 N.J. Super. 70, 75-76 (App. Div. 1986). It is not essential that the act relied upon was fraudulent or intentionally misleading. Miller v. Bd. of Trs., Teachers' Pension & Annuity Fund, 179 N.J. Super. 473, 477 (App. Div.), certif. denied, 88 N.J. 502 (1981). However, "the doctrine of equitable estoppel is applied only in very compelling circumstances." Davin, L.L.C. v. Daham, 329 N.J. Super. 54, 67 (App. Div. 2000).
While "'[e]quitable estoppel is rarely invoked against a governmental entity[,] . . . equitable estoppel will be applied in the appropriate circumstances unless the application would prejudice essential governmental functions.'" Twp. of Middletown v. Simon, 193 N.J. 228, 250 (2008) (quoting Middletown Twp. Policemen's Benevolent Ass'n Local No. 124 v. Twp. of Middletown, 162 N.J. 361, 367 (2000)). This is because the "government must turn square corners in its dealings with others, and comport itself with compunction and integrity." Sellers v. Bd. of Trs. of the Police & Firemen's Ret. Sys., 399 N.J. Super. 51, 59 (App. Div. 2008) (internal citations omitted). The Court has held that "even with respect to public entities, equitable considerations are relevant in evaluating the propriety of conduct taken after substantial reliance by those whose interests are affected by subsequent actions." Ibid. (quoting Skulski v. Nolan, 68 N.J. 179, 198 (1975)).
We reiterate that DCJ paid petitioner's wages. The Division of Pensions approved petitioner's retirement on two separate occasions in 2008 with Prosecutor's Part benefits. The Division of Pensions invited petitioner to buy back time in the Prosecutor's Part. Obviously, this would cause petitioner to assume his participation was undisputed.
It is not disputed that in 2006 petitioner and others were notified that their status was under review. Since petitioner did not receive any additional word for approximately two and one-half years after notification, he had no reason to be concerned and he therefore just continued working in his assignment. And that his pension status was of concern to him, and an inducement for his continued employment, is demonstrated by his email concerning the proposed transfer of ORVA. In that email, he indicates that the potential loss of participation in the Prosecutor's Part pension would cause him to seek a different assignment.
The petitioner did not change his position as a result of his belief. Rather, he just continued to work as always, to his detriment. That reliance was "reasonable and justifiable." See Foley, supra, 209 N.J. Super. at 75-76. Petitioner continued working, reasonably assuming that he was a "criminal justice guy." He has therefore met his burden of proof. The interests of "justice, morality and common fairness clearly dictate that course." Gruber v. Mayor & Twp. Comm. of Twp. of Raritan, 39 N.J. 1, 13 (1962). Petitioner has satisfied all the elements of equitable estoppel when applied against the government in this pension context. See Skulski, supra, 68 N.J. at 200.
Furthermore, had petitioner retired on either occasion he was approved within the Prosecutor's Part pension, as opposed to continuing to work, he would have been collecting those benefits without the need for this litigation. On two earlier occasions the Division of Pensions collected funds from him with which he purchased additional service credits. To deny him benefits at this stage would be a "manifest injustice." See Oberhand v. Dir. of Tax., 193 N.J. 558, 571-73 (2008).
Reversed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION