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Lavin v. Board of Education of Borough of Hackensack

Decided: March 9, 1981.

MARJORIE A. LAVIN, PETITIONER-APPELLANT,
v.
BOARD OF EDUCATION OF THE BOROUGH OF HACKENSACK, RESPONDENT-RESPONDENT



On appeal from a final determination of the State Board of Education.

Bischoff, Milmed and Francis. The opinion of the court was delivered by Francis, J.A.D.

Francis

[178 NJSuper Page 223] The questions presented by this appeal are: (1) whether the statute of limitations applicable to contract claims, N.J.S.A. 2A:14-1, applies to teachers' claims for retroactive pay based upon the statutory military service credit, N.J.S.A. 18A:29-11; (2) whether the claim may be barred by the equitable doctrines of laches or estoppel, and (3) whether the State Board of Education's exclusion of any salary credit for military service time of less than a full year's duration was proper.

The essential facts are undisputed. Petitioner (Lavin) was a member of the United States Army from January 2, 1943 through October 20, 1945, a period of 2 years, 9 months and 19 days. She was employed by the Board of Education of the Borough of Hackensack (local board) commencing on September 1, 1968 and thereafter to the present time. At no time was Lavin given salary credit for any time spent in the military service.

In or about May or June 1977 Lavin was informed by an acquaintance of a newspaper article regarding a decision of the Superior Court, Appellate Division, which she conceived as indicating some basis for a claim based on her military service. As a result of this information Lavin's husband contacted the New Jersey Education Association (N.J.E.A.) for information and was told that a claim might exist. By letter of October 14, 1977 Lavin applied for salary credit to the Borough of Hackensack Superintendent of Schools. She was told by the superintendent to contact the N.J.E.A. Lavin's N.J.E.A. representative negotiated with the local board in her behalf throughout the winter of 1978 in an attempt to resolve the matter without litigation. This proving fruitless, a petition was filed with the Commissioner of Education seeking compliance with the military service credit statute, N.J.S.A. 18A:29-11.

The Commissioner of Education held the statute of limitations inapplicable to such a claim. He reasoned that the military credit is the result of a legislative fiat, N.J.S.A. 18A:29-11, and not a contractual status. He further declined to apply laches or estoppel against petitioner, and in allowing her claim, equated her military service of 2 years, 9 months and 19 days as equivalent to three academic years in determining the allowable additional incremental military credits. He thus awarded petitioner the additional amount she would have received since 1968 had she been properly credited with her military service, after which she would be entitled to her regular salary as enhanced by the three yearly increments based on her military service. The State Board, however, rejected the Commissioner's decision and

held that the claim, insofar as it included the period prior to six years immediately preceding the filing of the claim, was barred by the statute of limitations N.J.S.A. 2A:14-1. The State Board also rejected petitioner's claim for back pay in its entirety for that period of time prior to September 1978 on the basis of laches and estoppel. The State Board did allow petitioner military service credit of two years to be applied subsequent to September 1978, i.e. , the beginning of the 1978-79 academic year.

In rejecting the claim on the basis of the statute of limitations the State Board ruled in essence that notwithstanding the statutory source of the military service credit, the substance of the claim is still a suit by a public employee to recover compensation -- a matter cognizable in a court of law and hence within the strictures of N.J.S.A. 2A:14-1. Since Lavin had not asserted her claim until October 1977, nine years after the first alleged underpayment in 1968 and nine years after the cause of action first accrued, the State Board held that at least a portion of the claim was filed beyond the six year period mandated by the statute. The applicable statute of limitations, N.J.S.A. 2A:14-1, reads in pertinent part as follows:

Every action at law for trespass to real property, for any tortious injury to real or personal property, for taking, detaining, or converting personal property, for replevin of goods or chattels, for any tortious injury to the rights of another not stated in sections 2A:14-2 and 2A:14-3 of this Title, or for recovery upon a contractual claim or liability, express or implied, not under seal , or upon an account other than one which concerns the trade or merchandise between merchant and merchant, their factors, agents and servants, shall be commenced within 6 years next after the cause of any such action shall have accrued. [Emphasis supplied]

The question is whether the State Board correctly viewed the unpaid credit as a contractual claim or whether it should be deemed a statutory benefit independent of contract and therefore not subject to traditional defenses such as the statute of limitations.

The military service credit is conferred by N.J.S.A. 18A:29-11:

Every member who, after July 1, 1940, has served or hereafter shall serve, in the active military or naval service of the United States or of this state, including active service in the women's army corps, the women's reserve of the

naval reserve, or any similar organization authorized by the United States to serve with the army or navy, in time of war or an emergency, or for or during any period of training, or pursuant to or in connection with the operation of any system of selective service, shall be entitled to receive equivalent years of employment credit for such service as if he had been employed for the same period of time in some publicly owned and operated college, school or institution of learning in this or any other state or territory of the ...


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