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JEAN S. CHETNEY, ESQUIRE 18 North Main Street Woodstown, New Jersey 08098 Phone: (856) 624-4776 Fax: (856) 624-4780 ID No: 18261998 Attorney for Defendants
Lt. Joseph A. Morgan, III
Plaintiff,
v.
Township of Woolwich, Township of Woolwich Police Department, Samuel Maccorone, Jr. (Mayor), Alan Schwager, (Deputy Mayor), John Fein (Committeeman), Jennifer Cavallaro (Committeewoman), Frank Rizzi (Committeeman)
Defendants.
SUPERIOR COURT OF NEW JERSEY LAW DIVISION GLOUCESTER COUNTY
DOCKET NO: L-1570-15
Civil Action
BRIEF IN SUPPORT OF MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED
STATEMENT OF FACTS
1. Plaintiff filed an Action in Lieu of Prerogative Writs pursuant to R. 4:69, et seq. on
November 19, 2015. (Exhibit A).
2. Plaintiff seeks to enjoin an action of the Woolwich Township Committee that appointed
Sgt. Richard Jaramillo as the Chief of Police effective on January 1, 2016. (Exhibit A at
¶35, page 8 at paragraph A and B).
3. Resolution R-2015-199 appointed Sgt. Richard Jaramillo Chief of Police and was passed
on September 21, 2015. (Exhibit B).
4. Plaintiff complained of the Township's action in a letter to the Chief of Police on
September 24, 2015. (Exhibit A, plaintiff's Complaint at ¶52; Exhibit C).
5. On October 5, 2015, counsel for plaintiff, Katherine Hartman, Esq., contacted the
Township's labor counsel to discuss plaintiff's claims. (See the Attorney Certification in
support of this motion at ¶3).
6. On October 5, 2015, the Township Committee conducted a closed-session meeting to
discuss the Chief of Police position. (Exhibit D).
7. No official action was taken with respect to the September 21, 2015 Chief of Police
appointment at the October 5, 2015 meeting. (Exhibit D).
8. No official action has been taken with respect to the Chief of Police appointment since
the appointment was made on September 21, 2015. (See the Attorney Certification in
support of this motion at ¶4).
LEGAL ARGUMENT
1. Plaintiffs Complaint must be dismissed because it was not filed within forty-five days of the official action challenged.
Actions in lieu of prerogative writs are governed by R. 4:69, et seq. The rule
states that "[n]o action in lieu of prerogative writs shall be commenced later than 45 days
after the accrual of the right to the review, hearing or relief claimed, except as provided
by paragraph (b) of this rule." R. 4:69-6. Exceptions are made at paragraph (b) of the rule
for actions challenging elections, tax assessments, planning board or board of adjustment
matters, public improvement ordinances, and other matters not at issue in this case.
2
a. Plaintiff's rights accrued on September 21, 2015.
Plaintiff's Complaint specifically challenges the appointment of Sgt. Richard
Jaramillo as Chief of Police and seeks to have that appointment restrained, revoked and
rescinded. Plaintiff's Complaint additionally seeks an order requiring the Township to
adopt a superseding resolution naming plaintiff as Chief of Police and for monetary
damages. The municipal action appointing Sgt. Richard Jaramillo as Chief of Police
occurred on September 21, 2015. (Exhibit B). Plaintiff's cause of action, or claimed right
to the relief claimed, therefore accrued on September 21, 2015. The appointment was
made at an open public meeting after interviews of the candidates. Plaintiff's September
24, 2015 grievance letter to the present Chief evidences that he was aware of the
September 21, 2015 action at least by September 24, 2015. (Exhibit C). He had
consulted with counsel at least by October 5, 2015.
b. Plaintiffs deadline to file an action in lieu of prerogative writs was
November 5, 2015.
Forty-five days from September 21, 2015 was November 5, 2015. Plaintiff was
therefore required to file an action by November 5, 2015.
c. Plaintiffs Complaint is barred because he failed to file by November 5,
2015.
Plaintiff's Complaint was filed on November 19, 2015. The complaint was filed
two weeks beyond the deadline for filing set by R. 4:69-6. Plaintiff's complaint was filed
forty-five days after the township's closed session meeting on October 5, 2015, but no
municipal action was taken on October 5, 2015. There is no provision in the Rule that
3
sets forth a tolling of the deadline while a complainant asks a municipality to reconsider
its decision.
Plaintiff was aware of the September 21, 2015 action at least by September 24,
2015, had consulted with counsel about the action by October 5, 2015, and was required
to file an action by November 5, 2015. The failure to file by that date is in violation of R.
4:69-6 and therefore requires a dismissal of his complaint.
CONCLUSION
For the foregoing reasons, Defendant Woolwich Township files this motion in lieu of an
Answer and respectfully requests that plaintiff's Complaint be dismissed, with prejudice.
Date: December 8, 2015
Respectfully submitted,
/Th L tiCt"
Jean Chetney, Esq. Attorney for Defendant Woolwich Township
Woolwich Twp/chief requirements — Brief in support of motion to dismiss
4
<2 5
(856) 624-4776 phone (856) 624-4780 fax Jean S. Chetney
Attorney at Law 18 North Main Street
Woodstown, NJ 08098
December 28, 2015
Honorable Eugene J. McCaffrey, Jr., J.S.C. Gloucester County Superior Court 1 North Broad Street, Courtroom 301 Woodbury, NJ 08096
Re: Morgan v. Township of Woolwich, et als Docket No. L- I 570-15 Date of Motion: January 8, 2016
Dear Judge McCaffrey,
Please accept this letter brief in lieu of a more formal reply to plaintiff's opposition to my
Motion to Dismiss in the above matter scheduled for January 8, 2016. Oral argument is
requested.
A. There is no authority to support plaintiff's argument that plaintiff's rights do not begin to accrue until the police chief assumes his position.
Plaintiff has provided no case law or statutory support for his argument that the 45-day
time limitation will begin to accrue on the date that the chief of police starts working in his
position as opposed to the date of the passage of the resolution appointing him. Rule 4:69-6
states that "[n]o action in lieu of prerogative writs shall be commenced later than 45 days after
the accrual of the right to the review, hearing or relief claimed...." Case law states that "'a cause
of action accrues when facts exist which entitle one party to maintain an action against another.'"
Trenkamp v. Burlington Twp., 170 N.J. Super. 251, 263, 406 A.2d 218, 225 (Ch. Div. 1979)
citing Zimmerman v. Cherivtch, 5 N.J. Super. 590, 68 A.2d 577 (Law Div. 1949). Plaintiff's
filing of his complaint prior to January 1 is evidence that he agrees that his right to bring an
(856) 624-4776 phone (856) 6244780 fax
Jean S. Chetney Attorney at Law
18 North Main Street Woodstown, NJ 08098
December 28, 2015
Honorable Eugene J. McCaffrey, Jr., J.S.C. Gloucester County Superior Court 1 North Broad Street, Courtroom 301 Woodbury, NJ 08096
Re: Morgan v. Township of Woolwich, et als Docket No. L-1570-15 Date of Motion: January 8, 2016
Dear Judge McCaffrey,
Please accept this letter brief in lieu of a more formal reply to plaintiff's opposition to my
Motion to Dismiss in the above matter scheduled for January 8, 2016. Oral argument is
requested.
A. There is no authority to support plaintiff's argument that plaintiff's rights do not begin to accrue until the police chief assumes his position.
Plaintiff has provided no case law or statutory support for his argument that the 45-day
time limitation will begin to accrue on the date that the chief of police starts working in his
position as opposed to the date of the passage of the resolution appointing him. Rule 4:69-6
states that InJo action in lieu of prerogative writs shall be commenced later than 45 days after
the accrual of the right to the review, hearing or relief claimed...." Case law states that "'a cause
of action accrues when facts exist which entitle one party to maintain an action against another.'"
Trenkamp v. Burlington Twp., 170 N.J. Super. 251, 263, 406 A.2d 218, 225 (Ch. Div. 1979)
citing Zimmerman v. Cherivtch, 5 N.J. Super. 590, 68 A.2d 577 (Law Div. 1949). Plaintiff's
filing of his complaint prior to January 1 is evidence that he agrees that his right to bring an
action accrued prior to January 1. The actions were filed because all of the facts that plaintiff
contends support a cause of action existed and were, known when the township passed a
resolution on September 21, 2015.
Much of the case law interpreting the accrual provision set forth in R. 4:69-6 focuses on
whether and when a plaintiff received notice of an action taken by a municipality. Harrison
Redev. v. DeRose, 398 N.J. Super. 361, 401 (App. Div. 2008) (a property owner's time to
challenge a redevelopment plan does not start to run until receipt of individual notice); Dolente
v. Borough of Pine Hill, 333 N.J. Super. 410 (App. Div. 1998) (time begins to run when action
taken during a meeting held in violation of the Open Public Meetings Law becomes public).
In this case, plaintiff claimed in his September 24, 2015 grievance letter that he was
entitled to relief from the September 21, 2015 resolution, and he was so concerned about the
Township's September 21, 2015 action that he had contacted an attorney by October 5, 2015.
The most plain reading of the Rule and these facts must result in the court's conclusion that the
Township took an official action of passing a resolution on September 21, 2015 resulting in the
alleged cause of action plaintiff has pleaded. To accept plaintiff's argument would require this
court to find that the cause of action does not accrue until January 1, 2016, which would result in
the illogical conclusion that plaintiff could not even bring an action challenging the Township's
decision until January 1, 2016.
B. The action that gave rise to plaintiff's complaint occurred on September 21, 2015, not October 5, 2015.
Plaintiffs contention that the Township Committee's vote for a closed session on
October 5, 2015 to discuss potential litigation was the official action that gave rise to his cause of
action is merely an unsupported attempt to extend the 45-day deadline. If the court accepts and
holds that each time a municipal body meets and fails to overturn a prior action, that constitutes a
action accrued prior to January 1. The actions were filed because all of the facts that plaintiff
contends support a cause of action existed and were, known when the township passed a
resolution on September 21, 2015.
Much of the case law interpreting the accrual provision set forth in R. 4:69-6 focuses on
whether and when a plaintiff received notice of an action taken by a municipality. Harrison
Redev. v. DeRose, 398 N.J. Super. 361, 401 (App. Div. 2008) (a property owner's time to
challenge a redevelopment plan does not start to run until receipt of individual notice); Dolente
v. Borough of Pine Hill, 313 N.J. Super. 410 (App. Div. 1998) (time begins to run when action
taken during a meeting held in violation of the Open Public Meetings Law becomes public).
In this case, plaintiff claimed in his September 24, 2015 grievance letter that he was
entitled to relief from the September 21, 2015 iesolution, and he was so concerned about the
Township's September 21, 2015 action that he had contacted an attorney by October 5, 2015.
The most plain reading of the Rule and these facts must result in the court's conclusion that the
Township took an official action of passing a resolution on September 21, 2015 resulting in the
alleged cause of action plaintiff has pleaded. To accept plaintiff's argument would require this
court to find that the cause of action does not accrue until Janimry 1, 2016, which would result in
the illogical conclusion that plaintiff could not even bring an action challenging the Township's
decision until January 1, 2016.
B. The action that gave rise to plaintiff's complaint occurred on September 21, 2015, not October 5, 2015.
Plaintiffs contention that the Township Committee's vote for a closed session on
October 5, 2015 to discuss potential litigation was the official action that gave rise to his cause of
action is merely an unsupported attempt to extend the 45-day deadline. If the court accepts and
holds that each time a municipal body meets and fails to overturn a prior action, that constitutes a
"continuing violation of public rights", the 45-day deadline would never be applicable to bar an
action against a municipality.
Case law cited by plaintiff in support of this argument is not applicable here. In Jones,
the "fresh wrong" was the assumption of a public office of councilman where the defendant was
statutorily not permitted to hold office as a councilman while he also sat on the county tax board.
Jones v. MacDonald, 33 N.J. 132 (1960). The court held that "title to public office cannot be
acquired by some sort of prescriptive right under [the accrual rule]" Id at 138. This was not a
case where there was a question about whether a public body properly exercised its authority; as
a matter of law, the defendant could not hold dual offices, and the defendant could not use a
statute of limitations to exercise a right of public office that did not exist. The court also found
that even if the action was time-barred, the case justified an enlargement of time under
subsection c) of the rule. Id. at 138-39. The situation in Jones was not similar to the present case,
where the question is whether the Township council appointed the proper candidate as police
chief.
In Meyers, the official action was the passage of an ordinance in June increasing an
official's salary retroactively to January. Meyers v. Mayor and Council of the Borough of East
Paterson, 37 N.J. Super. 122, 124-25 (App. Div. 1955). The Meyers court found that "Mr.
Gemza did not, 30 days after publication of the 1954 ordinance, secure a vested right to receive
in the future his illegal increase in salary. The ordinance and any salary payments thereunder do
not constitute a single illegal or tortious act occurring at the time the ordinance became effective
with merely consequential impacts or injuries at the time each installment of salary is paid.
Rather, the ordinance and payments are to be regarded as several illegal or unlawful acts." Id. at
128. This holding has been narrowly applied and distinguished in other cases:
[In Meyers] we were dealing with a salary increase; the action had been brought within 30 (now 45) days of the payment of an installment of salary at the increased rate, and we held that the ordinance and payments made pursuant
"continuing violation of public rights", the 45-day deadline would never be applicable to bar an
action against a municipality.
Case law cited by plaintiff in support of this argument is not applicable here. In Jones,
the "fresh wrong" was the assumption of a public office of councilman where the defendant was
statutorily not permitted to hold office as a councilman while he also sat on the county tax board.
Jones v. MacDonald, 33 N.J. 132 (1960). The court held that "title to public office cannot be
acquired by some sort of prescriptive right under [the accrual rule]" Id at 138. This was not a
case where there was a question about whether a public body properly exercised its authority; as
a matter of law, the defendant could not hold dual offices, and the defendant could not use a
statute of limitations to exercise a right of public office that did not exist. The court also found
that even if the action was time-barred, the case justified an enlargement of time under
subsection c) of the rule. Id. at 138-39. The situation in Jones was not similar to the present case,
where the question is whether the Township council appointed the proper candidate as police
chief.
In Meyers, the official action was the passage of an ordinance in June increasing an
official's salary retroactively to January. Meyers v. Mayor and Council of the Borough of East
Paterson, 37 N.J. Super. 122, 124-25 (App. Div. 1955). The Meyers court found that "Mr.
Gemza did not, 30 days after publication of the 1954 ordinance, secure a vested right to receive
in the future his illegal increase in salary. The ordinance and any salary payments thereunder do
not constitute a single illegal or tortious act occurring at the time the ordinance became effective
with merely consequential impacts or injuries at the time each installment of salary is paid.
Rather, the ordinance and payments are to be regarded as several illegal or unlawful acts." Id. at
128. This holding has been narrowly applied and distinguished in other cases:
[In Meyers] we were dealing with a salary increase; the action had been brought within 30 (now 45) days of the payment of an installment of salary at the increased rate, and we held that the ordinance and payments made pursuant
thereto were to be regarded as several successive illegal or unlawful acts, each remediable through a proceeding in lieu of prerogative writ. .... There the ordinance would have been valid as to any other occupant of the office, and the challenge to the increase in pay granted Gemza was premised upon his disentitlement to the increased salary because of a prior increase which he had received during his term, in violation of N.J.S.A. 40:46-23. Here the issue was whether the council had properly exercised its zoning powers. That exercise took the form of the ordinances under review. The status of property in the newly created zone was fixed by these ordinances, and the public, as distinguished from an official who was being illegally paid an enhanced salary, was entitled to rely thereon in the absence of a timely challenge thereto. To apply the doctrine of Meyers here would be not only to do violence to the spirit of zoning, but to greatly impede the enforcement of zoning regulations.
Kent v. Borough of Mendham, 111 N.J. Super. 67, 75, 267 A.2d 73, 77 (App. Div. 1970) (also
finding Jones, supra, to be inapposite).
The same analysis applies to the present case_ Here plaintiff calls into question the
authority of the Township Committee to use its powers to appoint ❑ne individual over another as
police chief. It does not involve the alleged successive illegal expenditure of public funds or an
action that is invalid on its face as a matter of law. Although the Township Committee met in
closed session to discuss the grievance asserted by plaintiff with respect to the September 21,
2015 resolution, there was no change to the September 21, 2015 resolution and the Committee
did not vote to take any action after closed session. Therefore, plaintiff was in the same position
and had the same rights on October 5 that he had on September 21. The fact that his attorneys
expected some action to be taken on October 5, 2015 to correct a wrong that occurred on
September 21 and no action was taken is additional support for the argument that he should have
filed a complaint by November 5, 2015, one month later.
C. Plaintiff's case does not qualify for enlargement of the 45-day deadline pursuant to the interest ❑f justice exception at R. 4:69-6(c).
The New Jersey Supreme Court has defined three general categories of cases that qualify
for the "interest of justice" exception: Iciases involving (1) important and novel constitutional
questions; (2) informal or ex parte determinations of legal questions by administrative officials;
thereto were to be regarded as several successive illegal or unlawful acts, each remediable through a proceeding in lieu of prerogative writ. .... ✴❈❅❒❅ ▼❈❅
❏❒❄❉■❁■❃❅ ◗❏◆●❄ ❈❁❖❅ ❂❅❅■ ❖❁●❉❄ ❁▲ ▼❏ ❁■❙ ❏▼❈❅❒ ❏❃❃◆❐❁■▼ ❏❆ ▼❈❅ ❏❆❆❉❃❅✌ ❁■❄ ▼❈❅ ❃❈❁●●❅■❇❅ ▼❏ ▼❈❅ ❉■❃❒❅❁▲❅ ❉■ ❐❁❙ ❇❒❁■▼❅❄ ✧❅❍❚❁ ◗❁▲ ❐❒❅❍❉▲❅❄ ◆❐❏■ ❈❉▲ ❄❉▲❅■▼❉▼●❅❍❅■▼ ▼❏ ▼❈❅ ❉■❃❒❅❁▲❅❄ ▲❁●❁❒❙ ❂❅❃❁◆▲❅ ❏❆ ❁ ❐❒❉❏❒ ❉■❃❒❅❁▲❅ ◗❈❉❃❈ ❈❅ ❈❁❄ ❒❅❃❅❉❖❅❄ ❄◆❒❉■❇ ❈❉▲ ▼❅❒❍✌ ❉■ ❖❉❏●❁▼❉❏■ ❏❆ ✮✎✪✎✳✎✡✎ ✔✐✚✔✖✍✒✓✎ Here the issue was whether the council had properly exercised its zoning powers. That exercise took the form of the ordinances under review. The status of property in the newly created zone was fixed by these ordinances, and the public, as distinguished from an official who was being illegally paid an enhanced salary, was entitled to rely thereon in the absence of a timely challenge thereto. To apply the doctrine of Meyers here would be not only to do violence to the spirit of zoning, but to greatly impede the enforcement of zoning regulations.
Kent v. Borough of Mendham, 111 N.J. Super. 67, 75, 267 A.2d 73, 77 (App. Div. 1970) (also
finding Jones, supra, to be inapposite).
The same analysis applies to the present case. Here plaintiff calls into question the
authority of the Township Committee to use its powers to appoint one individual over another as
police chief. It does not involve the alleged successive illegal expenditure of public funds or an
action that is invalid on its face as a matter of law. Although the Township Committee met in
closed session to discuss the grievance asserted by plaintiff with respect to the September 21,
2015 resolution, there was no change to the September 21, 2015 resolution and the Committee
did not vote to take any action after closed session. Therefore, plaintiff was in the same position
and had the same rights on October 5 that he had on September 21. The fact that his attorneys
expected some action to be taken on October 5, 2015 to correct a wrong that occurred on
September 21 and no action was taken is additional support for the argument that he should have
filed a complaint by November 5, 2015, one month later.
C. Plaintiff's case does not qualify for enlargement of the 45-day deadline pursuant to the interest of justice exception at R. 4:69-6(c).
The New Jersey Supreme Court has defined three general categories of cases that qualify
for the "interest of justice" exception: "[c]ases involving (1) important and novel constitutional
questions; (2) informal or ❅❘ ❐❁❒▼❅ determinations of legal questions by administrative officials;
and (3) important public rather than private interests which require adjudication or clarification."
Brunetti v. Borough of New Milford, 68 N.J. 576, 586, (1975). There is no important or novel
constitutional question involved in Woolwich Township's choice of police chief. No
constitutional question is pleaded because it does not exist. There was no informal or ex parte
determination of any legal question. Finally, what is most at stake in this case is Lt. Morgan's
private interest in becoming the chief of police. Unlike the cases cited by plaintiff that involve a
public interest such as the improper expenditure of public funds, improper holding of public
office contrary to law, public contracts that exceed statutory time limits and were not publicly
bid as statutorily required, this case involves a township committee's use of its discretion in
appointing a police chief. Plaintiff's complaint does not allege a statutory violation or any public
right that has been violated.
The Supreme Court has noted:
Other factors that will ordinarily guide courts include whether there will be a continuing violation of public rights, Jones v. MacDonald 33 N.J. 132, 138, 162 A.2d 817 (1960) (holding that "each purported exercise of the right of office by one without title to it constitutes a fresh wrong"); whether individual installments or payments are to be made under the challenged contract, Meyers v. Mayor and Council of the Borough of East Paterson, 37 N.J. Super. 122, 128, 117 A.2d 27 (App. Div. 1955), affd, 21 N.J. 357, 122 A.2d 337 (1956) (successive payments ❑f salary under illegally created position constitute separate remediable acts); whether the question will have a continuing impact on the parties, Reahl v. Randolph Township Mun. Utils. Auth.,163 N.J. Super. 501, 510, 395 A.2d 241 (App. Div. 1978), certif. denied, 81 NJ 45, 404 A.2d 1146 (1979) (holding power of municipal authority to charge standard annual rate for sewer service was a question of public importance); ....
Horsnall v. Washington Twp. (Mercer Ctv.)Div. of Fire, 405 N.J. Super. 304, 312-13, (App. Div.
2009). None of the cases that have permitted an enlargement of time involve a dispute over a
municipality's choice of police chief.
Municipalities must be able to rely on the enforcement of time limitations on actions such
as this. Woolwich Township was aware that its chief would retire effective January 1 and was
diligent in selecting potential candidates, conducting interviews, and making a decision about
and (3) important public rather than private interests which require adjudication or clarification."
Brunetti v. Borough of New Milford, 68 N.J. 576, 586, (1975). There is no important or novel
constitutional question involved in Woolwich Township's choice of police chief. No
constitutional question is pleaded because it does not exist. There was no informal or ❅❘ ❐❁❒▼❅
determination of any legal question. Finally, what is most at stake in this case is Lt. Morgan's
private interest in becoming the chief of police. Unlike the cases cited by plaintiff that involve a
public interest such as the improper expenditure of public funds, improper holding of public
office contrary to law, public contracts that exceed statutory time limits and were not publicly
bid as statutorily required, this case involves a township committee's use of its discretion in
appointing a police chief. Plaintiff's complaint does not allege a statutory violation or any public
right that has been violated.
The Supreme Court has noted:
Other factors that will ordinarily guide courts include whether there will be a continuing violation of public rights, Jones v. MacDonald, 33 N.J. 132, 138, 162 A.2d 817 (1960) (holding that "each purported exercise of the right of office by one without title to it constitutes a fresh wrong"); whether individual installments or payments are to be made under the challenged contract, Meyers v. Mayor and Council of the Borough of East Paterson, 37 N.J. Super. 122, 128, 117 A.2d 27 (App. Div. 1955), affd, 21 ✮✎✪✎ 357, 122 A.2d 337 (1956) (successive payments of salary under illegally created position constitute separate remediable acts); whether the question will have a continuing impact on the parties, Reahl v. Randolph Township Mun. Utils. Auth.,163 N.J. Super. 501, 510, 395 A.2d 241 (App. Div. 1978), certif. denied, 81 ✮✎✪✎ 45, 404 A.2d 1146 (1979) (holding power of municipal authority to charge standard annual rate for sewer service was a question of public importance); ....
Horsnall v. Washington Twp. (Mercer Cty.)Div. of Fire, 405 N.J. Super. 304, 312-13, (App. Div.
2009). None of the cases that have permitted an enlargement of time involve a dispute over a
municipality's choice of police chief.
Municipalities must be able to rely on the enforcement of time limitations on actions such
as this. Woolwich Township was aware that its chief would retire effective January 1 and was
diligent in selecting potential candidates, conducting interviews, and making a decision about
who his successor would be well in advance of January 1 so there would be no vacancy or
uncertainty in this important position. The Township is prejudiced where a candidate is permitted
to challenge the decision and place the certainty of the police chief position into question after
the new candidate has started in the position and beyond the 45-day period that one was
statutorily permitted to challenge the decision. "Balanced against these public interests, ... is the
important policy of repose expressed in the forty-five day rule. The statute of limitations is
designed to encourage parties not to rest on their rights." Reilly v. Brice, 109 N.J. 555, 559,
(1988). Knowledge and notice of a cause of action must be a consideration in applying the 45-
day rule. "The court must balance the equities of the case and in no circumstance enlarge the
time period on this ground beyond 45 days from the time at which plaintiff knew or should have
known of the cause of action." Trenkamp v. Burlington Twp., 170 N.J. Super. 251, 265, (Ch.
Div. 1979).
There is no question in this case that plaintiff knew about the township's action on
September 21, 2015. Any cause of action accrued with the township's passage of a resolution on
September 21, 2015. R. 4:46-6 required plaintiff to file an action in lieu of prerogative writ
within 45 days of the accrual of his cause of action. His failure to do so requires this court to
dismiss his complaint.
Respectfully submitted,
Jean Chetney
C: Civil Case Management Michael C. Mormando, Esq. Mark Shoemaker, Esq. Jane DiBella, Clerk
who his successor would be well in advance of January 1 so there would be no vacancy or
uncertainty in this important position. The Township is prejudiced where a candidate is permitted
to challenge the decision and place the certainty of the police chief position into question after
the new candidate has started in the position and beyond the 45-day period that one was
statutorily permitted to challenge the decision. "Balanced against these public interests, ... is the
important policy of repose expressed in the forty-five day rule. The statute of limitations is
designed to encourage parties not to rest on their rights." Reilly v. Brice, 109 N.J. 555, 559,
(1988). Knowledge and notice of a cause of action must be a consideration in applying the 45-
day rule. "The court must balance the equities of the case ... and in no circumstance enlarge the
time period on this ground beyond 45 days from the time at which plaintiff knew or should have
known of the cause of action." Trenkamp v. Burlington Twp., 170 N.J. Super. 251, 265, (Ch.
Div. 1979).
There is no question in this case that plaintiff knew about the township's action on
September 21, 2015. Any cause of action accrued with the township's passage of a resolution on
September 21, 2015. R. 4:46-6 required plaintiff to file an action in lieu of prerogative writ
within 45 days of the accrual of his cause of action. His failure to do so requires this court to
dismiss his complaint.
Respectfully submitted,
Jean Chetney
C: Civil Case Management Michael C. Mormando, Esq. Mark Shoemaker, Esq. Jane DiBella, Clerk
