THE COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Pasquale D'Antonio,

Petitioner

v. Docket No. CR-06-18

Middlesex Retirement System,

Respondent

Appearance for Petitioner:

Pro Se

66 Park Street
Wilmington, MA 01887

Appearance for Respondent:

Thomas F. Gibson, Chairman

Middlesex Retirement System
25 Linnell Circle
Billerica, MA 01865

Administrative Magistrate:

Judithann Burke

DECISION

Pursuant to G. L. c. 32 s. 16(4), the Petitioner, Pasquale D'Antonio, is appealing from the December 12, 2005 decision of the Respondent, Middlesex Retirement System (MRS), denying his request to have his retirement allowance recalculated using a new mortality table. (Exhibits 1 and 2). The appeal envelope was postmarked January 4, 2006 and was not received at DALA until January 5, 2006. (Exhibit 3).

The Petitioner opted to pursue his appeal without a hearing. (Exhibits 4 and 5). In lieu of a hearing at the Division of Administrative Law Appeals (DALA), the parties submitted their respective cases on the documents which have been marked as Exhibits 1-7 . An Exhibit List has been provided at page 4 of this Decision. The last of the submissions was received at DALA on March 31, 2008, thereby closing the record.

PROCEDURAL RULING

The MRS sent its letter denying the Petitioner's request to recalculate his retirement allowance on December 12, 2005. G.L. c. 32 s. 16(4) provides:

…any person when aggrieved by any action taken or decision of the retirement board…may appeal to the contributory retirement appeal board by filing therewith a claim in writing within fifteen days of notification of such action or decision of the retirement board…

The Petitioner's appeal letter was postmarked January 4, 2006. His appeal was received at DALA on January 5, 2006. The Petitioner did not file his appeal by December 28, 2005, a full fifteen days after the MRS's action. As such, his appeal was late and DALA and CRAB have no jurisdiction in this case. The appeal is hereby dismissed.

RULING ON THE MERITS

Should CRAB conclude that the appeal should not be dismissed for lack of jurisdiction, the following Decision is rendered on the merits of the case.

FINDINGS OF FACT

Based upon the documents submitted by the parties, I hereby render the following findings of fact:

1. The Petitioner, a former employee of the Town of Wilmington, applied for and was granted superannuation retirement effective February 9, 2004. He retired under Option C. (Exhibit 6).

2. Chapter 143 of the Acts of 2005 was signed into law on November 22, 2005.
This legislation allowed retirees who elected Option A or Option B between July 1, 2004 and December 27, 2004 to reselect their options to take advantage of the increased allowances under Option C resulting from the implementation of the new mortality tables that were adopted by PERAC on December 22, 2004, pursuant to Section 336 of Chapter 149 of the Acts of 2004. Retirees who selected Option C during that time period were not eligible to select a new option. (Exhibit 7).

3. The Petitioner was not informed by the MRS of any prospective legislative changes when he filed his retirement application in December 2003 or at the time of his retirement in February 2004.

4. On October 31, 2005, the Petitioner requested that the MRS recalculate his retirement allowance using the new Mortality Tables. (Exhibit 1).

5. The MRS denied the Petitioner's request on December 12, 2005. (Exhibit 2).

6. The Petitioner's appeal was received at DALA on January 5, 2006. (Exhibit 3).

CONCLUSION

The Petitioner is not entitled to prevail in this appeal. The new mortality tables, implemented via Section 336 of Chapter 149 of the Acts of 2004, did not take effect until July 1, 2004, nearly five months after the Petitioner retired. These new mortality tables were not actually implemented until December 2004, ten months after the Petitioner retired.

There was no duty on the part of the MRS to inform the Petitioner of any prospective change in the law during the period from December 2003 through his
retirement in February 2004. There is no statutory or regulatory remedy available to the Petitioner in this case. No wrong has been perpetrated on the Petitioner in this case.

The decision of the MRS is affirmed.

So ordered.

Division of Administrative Law Appeals,

Judithann Burke
Administrative Magistrate

DATED: June 12 , 2008

EXHIBIT LIST

Exhibit No. Document description

1 -October 31, 2005 letter requesting recalculation of retirement allowance
2 - December 12, 2005 Decision letter of MRS
3 - December 29, 2005 letter of appeal
4 - March 19, 2008 letter from Administrative Magistrate
5 - March 13, 2008 letter waiving hearing
6 - Application for superannuation retirement
7 - January 6, 2006 PERAC memorandum re Chapter 143 of the Acts of 2005


This information is provided by the Division of Administrative Law Appeals.