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Bortel v. Board of Education of Township of Cherry Hill

Decided: May 31, 1967.


Wick, J.s.c.


This is an action for declaratory judgment seeking to have N.J.S.A. 43:3-1 declared to be unconstitutional both on its face and also insofar as it affects the right of the individual plaintiffs to receive the benefits of previously earned pensions.

The facts of the case are not disputed, and the entire cause of action has been submitted to the court on memoranda filed by the opposing parties. The State of New Jersey, through the office of the Attorney General, has also submitted a brief in behalf of the Teachers' Pension and Annuity Fund and all other state-administered pension funds.

For the sake of brevity the facts may be somewhat capsulized since all three plaintiffs find themselves in the same basic position. Plaintiffs Pollock and Primiano both taught in the Philadelphia public school system before coming to defendant board of education. Both are eligible to receive their pension from the Pennsylvania Teachers' Retirement and Annuity Fund.

Plaintiff Bortel was an employee of the Philadelphia Police Department for 20 years prior to his association with the defendant, and was entitled to receive his pension from the City of Philadelphia Police and Firemen's Pension Fund.

All three plaintiffs have been associated with defendant for several years, Bortel and Primiano since 1960 and Pollock since 1962. Recently defendant notified plaintiffs of the provisions of N.J.S.A. 43:3-1 and informed them that they could continue their association with defendant, but only if they notified their pension boards that for the duration of said association all pension payments were to be suspended, or in the alternative they could continue to receive their pension payments and forego any right to a salary.

Plaintiffs attack the validity of the provisions of N.J.S.A. 43:3-1 on several grounds. They allege that the statute

is a denial of equal protection of the law in that the classification drawn therein is arbitrary, discriminatory and without reasonable basis. Secondly, plaintiffs argue that the statute deprives them of property without due process of law, in violation of the Fourteenth Amendment of the United States Constitution and of the provisions of the New Jersey Constitution relating to the taking of property without just compensation. Finally, they contend that the statute is a wrongful and illegal interference with free enterprise and with their right to work where and for whom they please.

N.J.S.A. 43:3-1 reads as follows:

"Any person who is receiving or who shall be entitled to receive any pension or subsidy from this or any other State or any county, municipality or school district of this or any other State, shall be ineligible to hold any public position or employment other than elective in the State or in any county, municipality or school district, unless he shall have previously notified and authorized the proper authorities of said State, county, municipality or school district, from which he is receiving or entitled to receive the pension that, for the duration of the term of office of his public position or employment he elects to receive (1) his pension or (2) the salary or compensation allotted to his office or employment. Nothing in this chapter shall be construed to affect any pension status or the renewal of payments of the pension after the expiration of such term of office except that such person shall not accept both such pension or subsidy and salary or compensation for the time he held such position or employment."

The predecessor of this statute was before the courts in 1932, the end result being that chapter 259 of the Laws of 1932 was held to be constitutional. Turner v. Passaic Pension Commission, 112 N.J.L. 476 (Sup. Ct. 1932). Though the equal protection argument was not advanced before that tribunal, this court feels that it would be improper, in light of the Turner decision, to entertain an overall attack on the validity of N.J.S.A. 43:3-1, it being determined there that the public policy of this State precludes one who is receiving a pension pursuant to ...

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