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Juliano v. Borough of Ocean Gate

Decided: October 17, 1986.

CAROL JULIANO, PLAINTIFF,
v.
BOROUGH OF OCEAN GATE; WILLIS JONES, INDIVIDUALLY AND AS MAYOR, WALTER ALONZO, CARL BACH, MURIEL DEAN, DWAYNE MEASE, WALTER REITER & JOSEPH REINA, INDIVIDUALLY AND AS MEMBERS OF THE COUNCIL OF THE BOROUGH OF OCEAN GATE, DEFENDANT, V. THOMAS M. BARCELLONA, DEFENDANT-INTERVENOR



Serpentelli, A.j.s.c.

Serpentelli

[214 NJSuper Page 505] Plaintiff seeks to invalidate appointment of defendant-intervenor Barcellona as chief of police in Ocean Gate asserting a right to be appointed to that position pursuant to N.J.S.A. 40A:14-129. Involved in the litigation are numerous novel legal issues including the validity of plaintiff's appointment to the police department because she was beyond the age of 35 at that time; the validity of the maximum age limitation for police officers established by N.J.S.A. 40A:14-127; the claim that the municipality is estopped from asserting that plaintiff exceeded that maximum age when the municipality first appointed her and the municipality's claim that even if it is required by N.J.S.A. 40A:14-129 to promote police officers from within its department, the statute is inapplicable to appointment of a chief of police. Other issues depend upon factual determinations and are not appropriate subjects for the motions for summary judgment now before the court. Included in that category are defendants' claims that plaintiff did not want to be considered for appointment and that, in any event, she is not qualified for the job.

It is uncontested that plaintiff was appointed in some temporary capacity with the police department on August 6, 1973. On March 16, 1974 she took an oath as "Police Matron." She was thereafter appointed "Special Police Officer" on January 1, 1976 and again on January 1, 1977. The parties agree plaintiff remained as a special police officer until March 14, 1978. On that date she signed an oath as a "Regular Police Officer." Since that date she has served continuously, moving through the ranks to the position of sergeant, and on February 26, 1985 she was appointed "Acting Police Chief." She remained acting chief until the borough appointed defendant Barcellona chief of police on April 22, 1986.

The first issue to be resolved is whether plaintiff's appointment as a regular police officer violated N.J.S.A. 40A:14-127. That statute provides, in part:

Except as otherwise herein provided, no person shall be appointed as a member or officer of the police department or force in any municipality who is under 21 or over 35 years of age.

It is admitted that plaintiff was almost 39-years-old at the time she took the oath as a regular police officer on March 14, 1978. Plaintiff argues that she was a police officer since her initial appointment as a temporary officer on August 6, 1973. To avoid application of the 35-year maximum age, plaintiff seeks to tack on her service in various temporary positions within the police department which occurred before she was 35-years-old. N.J.S.A. 40A:14-146, which was in effect at the time of plaintiff's appointment as a regular police officer, is dispositive. It expressly provides that special law officers "shall not be members of the police force."*fn1 The evident intent is to create a different category of employee which would augment the police force, limit the powers of special officers and restrict their

appointment to a one-year term. Our Supreme Court has held that such employment is temporary and does not qualify as permanent employment within the meaning of the predecessor of N.J.S.A. 40A:14-127. State ex rel. Eckelmann v. Jones, 4 N.J. 207, 213-14 (1950).

Thus, the court is called upon to address the problems created by plaintiff's appointment as a regular police officer when she was beyond age 35. While plaintiff urges the court to invalidate the age-35 restriction, that issue should not be decided absent notice to the Attorney General pursuant to Rule 4:28-4. Furthermore, the court need not decide that question until it has determined whether the borough is estopped from asserting that the plaintiff's appointment as a regular police officer is void ab initio because of her age at appointment. It is to that question I now turn.

The principle of estoppel is designed to prevent a party from disavowing prior conduct if such repudiation would violate justice and conscience and thereby prejudice others. West Jersey Title Co. v. Industrial Trust Co., 27 N.J. 144, 153 (1958). It must be acknowledged that our courts have been more hesitant to apply the doctrine of estoppel against municipal corporations than against private parties. Vogt v. Borough of Belmar, 14 N.J. 195, 205 (1954). That approach is justified since matters of public interest and legislative will should not be easily compromised by freely applying the doctrine of estoppel to irregular municipal conduct. However, our Supreme Court has recognized and approved of the growing trend towards the application of equitable principles of estoppel against public entities where the interest of justice, morality and common fairness require that course. Gruber v. Mayor and Township Committee of Raritan Tp., 39 N.J. 1, 13 (1962); Palisades Properties, Inc. v. Brunetti, 44 N.J. 117, 131 (1965).

In 405 Monroe Co. v. Asbury Park, 40 N.J. 457 (1963), Chief Justice Weintraub framed the circumstances under which it is

appropriate to invoke the concept of estoppel against ...


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