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BALZANO v. TOWNSHIP OF NORTH BERGEN

December 23, 1986

CARMINE BALZANO, Plaintiff,
v.
TOWNSHIP OF NORTH BERGEN, NORTH BERGEN CITY COUNCIL, MAYOR OF NORTH BERGEN, Defendants



The opinion of the court was delivered by: DEBEVOISE

 Plaintiff Carmine Balzano filed this action on April 3, 1986 against defendants Township of North Bergen, North Bergen City Council and Mayor of North Bergen (collectively, "the Township") pursuant to 42 U.S.C. § 1983 and the due process clause of the Fourteenth Amendment, seeking to recover monetary compensation for unused sick leave, vacation time and overtime pay allegedly owed to him. Defendants now move to dismiss the complaint for failure to state a claim, and plaintiff has cross-moved for summary judgment.

 Facts

 Plaintiff Carmine Balzano was employed as a police officer by the defendant Township for approximately 18 years before his dismissal on July 12, 1984 because of an arson conviction. He alleges that during his employment he accrued sick pay, vacation pay and overtime pay, and that it was the established custom and practice of the Township to pay such accumulated sums subsequent to an employee's termination.

 Plaintiff claims that he accumulated 206 sick days between 1966 and 1984 and that under a Township sick leave ordinance he was entitled to a maximum of $ 12,000 in compensation. He further claims that he accumulated vacation pay between 1971 and 1984 in the amount of $ 40,000 and overtime pay between 1971 and 1979 totaling $ 48,000. He alleges entitlement to these sums based upon the Collective Bargaining Agreement between the Township and the North Bergen Policemen's Benevolent Association ("PBA") and upon Township custom and practice.

 Recital of certain of the facts is necessary in order to address properly the issues raised by the parties. It is unclear when Balzano first requested reimbursement for overtime, sick leave pay and vacation pay, but the record indicates that on May 9, 1975 the Director of Public Safety for the Township verified and approved all overtime pay sought by Balzano for the years 1971 through 1975.

 On March 23, 1979, Balzano sent a letter to the Commissioner of Public Safety seeking compensation for leave days, vacation days, schedule days and overtime hours for the years 1976 through 1979. The Commissioner countersigned that letter "authorized and approved" and signed his name as well.

 On August 23, 1984, Balzano's accountant sent a letter to the Township Administrator regarding the calculation of the amounts claimed by Balzano.

 On August 30, 1984, Township Administrator Michael Pollotta wrote to Balzano concerning certain inaccuracies in the computation of his vacation time. Pollotta stated in his letter:

 
I have asked Lt. Delaney to make the necessary corrections and upon receipt of them I will again contact you. I am aware of the contract provision that requires the Township to pay all money due a discharged employee on the pay day immediately following termination of employment.

 Approximately one month later on October 9, 1984, Pollotta sent a letter to Balzano's attorney regarding requests for accrued sick pay, vacation pay and overtime pay. That letter stated in part:

 
Since the 1984 Local Municipal Budget has already been adopted it is impossible to pay these claims at this time. I will recommend that they be included in the 1985 budget when it is formulated.

 Balzano claims that in reliance on these letters, he refrained from commencing suit, expecting that his claims would be paid in 1985 as stated by Pollotta on October 9, 1984.

 Thereafter, on October 29, 1984, the Township's attorney, Dennis Oury, Esq., sent Balzano's attorney a letter stating:

 
I have reviewed [Balzano's claim for $ 100,000] with several Township officials and since the Township is unable at this time to verify your claim, it is the Township's position to decline the application.

 Balzano asserts that in light of the previous letters and particularly Pollotta's letter of October 9, he interpreted Oury's letter to mean simply that the claim would not be paid until 1985. Balzano further alleges that the actual reason the Township attorney could not verify the claim, as the attorney later explained, was because ...


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