March 9, 2011
EDWARD JACKUS, PLAINTIFF-RESPONDENT,
CITY OF ELIZABETH BOARD OF EDUCATION, A CORPORATE BODY IN THE COUNTY OF UNION; PABLO MUNOZ, INDIVIDUALLY AND IN HIS REPRESENTATIVE CAPACITY AS SUPERINTENDENT OF SCHOOLS OF THE ELIZABETH SCHOOL DISTRICT; CARLOS TRUJILLO, INDIVIDUALLY AND IN HIS REPRESENTATIVE CAPACITY AS THE PRESIDENT OF THE ELIZABETH BOARD OF EDUCATION; ARMANDO DASILVA, INDIVIDUALLY AND IN HIS REPRESENTATIVE CAPACITY AS MEMBER OF THE ELIZABETH BOARD OF EDUCATION; RAUL BURGOS, INDIVIDUALLY AND IN HIS REPRESENTATIVE CAPACITY AS MEMBER OF THE ELIZABETH BOARD OF EDUCATION; JOHN DONOSO, INDIVIDUALLY AND IN HIS REPRESENTATIVE CAPACITY AS MEMBER OF THE ELIZABETH BOARD OF EDUCATION; FRANCISCO GONZALEZ, INDIVIDUALLY AND IN HIS REPRESENTATIVE CAPACITY AS MEMBER OF THE ELIZABETH BOARD OF EDUCATION; ELCY CASTILLO-OSPINA INDIVIDUALLY AND IN HIS REPRESENTATIVE CAPACITY AS MEMBER OF THE ELIZABETH BOARD OF EDUCATION; MARIE LYNN MUNN, INDIVIDUALLY AND IN HER REPRESENTATIVE CAPACITY AS MEMBER OF THE ELIZABETH BOARD OF EDUCATION; RAFAEL J. FAJARDO, INDIVIDUALLY AND IN HIS REPRESENTATIVE CAPACITY AS MEMBER OF THE ELIZABETH BOARD OF EDUCATION; AND FERNANDO NAZCO, INDIVIDUALLY AND IN HIS REPRESENTATIVE CAPACITY AS MEMBER OF THE ELIZABETH BOARD OF EDUCATION, DEFENDANTS-APPELLANTS.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-2405-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 26, 2011 - Decided Before Judges Axelrad, Lihotz and J. N. Harris.
On our leave granted, we consider the challenges to the Law Division's exercise of jurisdiction and imposition of injunctive relief, ordering defendant Elizabeth Board of Education (the Board)*fn1 to restore plaintiff Edward Jackus to his position as a supervisor in the Elizabeth school district, following a reduction in force. The Board requests the injunction be vacated and the matter transferred to the Acting Commissioner of Education (Commissioner), arguing the court lacked subject matter jurisdiction and plaintiff failed to satisfy the prerequisites for injunctive relief. Plaintiff maintains the dispute involves the enforcement of a litigation settlement agreement over which the Commissioner has no jurisdiction. Plaintiff also maintains injunctive relief was properly granted.
Following our review, we determine that although the Law Division has subject matter jurisdiction over a contractual dispute as well as the tort and discrimination claims alleged, plaintiff's action also challenges the propriety of the reduction in force ordered by defendant, which is a matter within the primary jurisdiction of the Commissioner of Education. Accordingly, issues regarding the reduction in force must first be resolved by the Commissioner, and the Law Division must stay its action pending final administrative review. Additionally, we reverse the imposed injunction, concluding no irreparable harm was presented as the relief sought by plaintiff is monetary damages.
Plaintiff has been employed by the Board since 1979. Initially, he was a tenured physical education, health and driver's education teacher and beginning in 1995, he was promoted to the position of Vice Principal of one of the district's elementary schools. In 2001, the Board filed tenure charges against the elementary school's principal and its two vice principals, including plaintiff. The charges asserted the principal, aided by the vice-principals, failed to hold mandatory fire drills, but certified the elementary school was fully compliant with N.J.S.A. 18A:41-1, which requires the principal of a school to "have at least two fire drills each month within the school hours."
After the State Board of Education dismissed the charges, a decision we affirmed, In re Tenure Hearing of Jackus, No. A-4421-01 (App. Div. May 1, 2003), certif. denied, 177 N.J. 572 (2003), plaintiff filed a federal action, asserting the tenure charges were for the purpose of political intimidation. Plaintiff's complaint alleged, among other things, that the Board impeded his state and federal constitutional rights of due process, free speech and political association.
The background for plaintiff's allegations in the federal litigation is as follows. Plaintiff had served as a Councilman-at-Large for the City of Elizabeth Council since 1993. In the 2000 primary election, he and a slate of candidates he supported for the positions of Mayor and City Council were challenged by Rafael Fajardo, the president of the Board, who himself sought to be the candidate for mayor. Fajardo's running mates included another member of the Board and the spouse of a third Board member. Plaintiff and those he supported defeated Fajardo and his candidates. Plaintiff also maintained he was targeted because of his support for a referendum to allow the mayor to appoint the board members, a position opposed by the elected Board. The referendum was not adopted by the electorate.
After completion of discovery in the federal litigation, the Board filed for summary judgment, which was granted as to three counts of the complaint that alleged defamation and emotional distress, but denied as to the remaining seven counts. Thereafter, on June 27, 2005, plaintiff and the Board negotiated a settlement agreement (the agreement).
Pursuant to the terms of the agreement, plaintiff agreed to release the Board from "any and all" claims in exchange for $75,000 in counsel fees and promotion from his "ten[-]month vice-principal position to the twelve[-]month position of Supervisor of Physical Education, Safety, Health and Athletics[.]" Further, the agreement stated the Board "agree[d] that as long as [p]laintiff is serving in the position of Supervisor of Physical Education, Health, Safety and Athletics, said position shall not be abolished." It was also agreed that plaintiff could "be removed from the position only through the tenure charge process."*fn2
In 2010, the Board, like many other school districts across the state, encountered budgetary difficulties as a result of the reduction in State funding, necessitating a reduction in force for the upcoming 2010-2011 school year. The Board eliminated approximately 500 positions, including all vice principal and many supervisor positions. Consistent with seniority rights, all certificated, tenured staff were transferred to their previously held tenured positions, retaining all seniority and tenure rights.
Plaintiff was notified that his supervisor position was being eliminated and for the 2010-2011 school year he would be transferred to a ten-month teaching position as a physical education and health teacher, with a concomitant salary reduction from $125,758 to $104,798.*fn3
Plaintiff initiated the current action by filing a complaint and an order to show cause seeking to restrain the Board from effectuating the reduction in force as to him. Generally, plaintiff alleged he was demoted in retaliation for his activities as a councilman and in violation of the terms of the 2005 agreement, which prohibited the Board from removing him from his supervisor position. Plaintiff added counts alleging violations of due process, freedom of speech and association because he would not endorse the Board's political agenda or fund raisers, and civil rights, discrimination and infliction of emotional distress.
The Board opposed the application for an injunction and argued the dispute is one involving the non-renewal of an employment contract due to a reduction in force and the implementation of seniority rights, which must be presented to the Commissioner, who has primary jurisdiction pursuant to N.J.S.A. 18A:6-9. Thus, it urged plaintiff's failure to exhaust his administrative remedies required dismissal of his complaint. Further, the Board disputed plaintiff's interpretation of the agreement, arguing lifetime employment was prohibited and its statutory authority to effectuate a reduction in force, N.J.S.A. 18A:28-9, could not be superseded by the agreement.
In a July 21, 2010 oral opinion, the trial judge found the court had jurisdiction as the issue "involve[d] interpretation of a settlement agreement" which is a "legal issue appropriate for the court to decide[.]" In evaluating plaintiff's request for injunctive relief, the court examined the four-pronged test of Crowe v. DeGioia, 90 N.J. 126 (1982), finding the material facts were uncontroverted, because "there is no dispute the parties entered into a settlement agreement and plaintiff dismissed his federal lawsuit in reliance" of that agreement, giving him a "settled legal right" in "the enforcement of the settlement agreement." The judge noted that while the agreement "involved a school defendant, the agreement was not made pursuant to school policy," and therefore, N.J.S.A. 18A:28-9 did not shield defendant. Further, the motion judge found the threatened harm "involved more than just pecuniary damages" because it concerned plaintiff's "ability to speak out as a councilman," as well as his "intangible right to employment and seniority." In "balancing of [the] equities," the court concluded they weigh in favor of injunctive relief, because the harm to plaintiff in "being demoted[,] . . . taking a different title, [and] working a different number of weeks outweigh[ed] any burden on the school board budget[.]" The court also noted the equities weighed in favor of plaintiff because he was "unable to act as councilman without retaliation[.]" Consistent with her bench decision, the motion judge entered an order requiring defendant to restore plaintiff to his position as supervisor and pay him any back pay and benefits that he "was deprived of as a result of his reappointment."
The Board sought, and we granted, leave to review this interlocutory order. The Board argues the Law Division erred in assuming jurisdiction over this educational dispute and in granting plaintiff's request for a preliminary injunction.
The applicable standards that guide our review of the trial court's decision are well settled. First, a determination that a trial court has jurisdiction over a dispute is purely a legal issue and "not entitled to any special deference." Manalapan Realty L.P. v. Twp. of Manalapan, 140 N.J. 366, 378 (1995); see also Nicastro v. McIntyre Mach. Am., Ltd., 201 N.J. 48, 61 n.7, cert. granted, 131 S. Ct. 62, 177 L. Ed. 2d 1151 (U.S. Sept. 28, 2010) (No. 09-1343). Our review is de novo.
Second, if jurisdiction is properly before the Law Division, we examine whether the court abused its discretion in granting a preliminary injunction. Rinaldo v. RLR Inv., LLC, 387 N.J. Super. 387, 395 (App. Div. 2006); see also Horizon Health Ctr. v. Felicissimo, 135 N.J. 126, 137 (1994); Bubis v. Kassin, 353 N.J. Super. 415, 424 (App. Div. 2002).
Virtually every aspect of public education is governed by New Jersey's Education Law (NJEL), N.J.S.A. 18A:1-1 to :76-4. The statutory scheme establishes the administration and operation of New Jersey's public school system.
The management and supervision of the local public school districts rests with boards of education. N.J.S.A. 18A:10-1. Among their responsibilities, school boards are given authority regarding the "employment, regulation of conduct and discharge of its employees, subject, where applicable, to the provisions of Title 11[.]" N.J.S.A. 18A:11-1. A board of education's responsibilities include the approval of any claims against the district, N.J.S.A. 18A:19-2, and authorization of any expenditures of the district's funds, N.J.S.A. 18A:19-1.
Setting teaching staff salaries is also statutorily governed by N.J.S.A. 18A:16-1, which allows the school boards to "fix and alter" the "compensation and the length of the terms of employment" of "principals, teachers, janitors and other officers and employees[.]" A board of education may "adopt a one, two or three year salary policy, including salary schedules for all full-time teaching staff members which shall not be less than those required by law." N.J.S.A. 18A:29-4.1. Thus, "the Board's managerial duty to deploy personnel in the manner which it considers most likely to promote the overall goal of providing all students with a thorough and efficient education" is part of "the public employer's discharge of inherent managerial responsibilities." Ridgefield Park Educ. Ass'n v. Ridgefield Park Bd. of Educ., 78 N.J. 144, 156 (1978).
Further, the Board has exclusive authority to reduce the number of teaching staff members, employed in the district whenever, in the judgment of the board, it is advisable to abolish any such positions for reasons of economy or because of reduction in the number of pupils or of change in the administrative or supervisory organization of the district or for other good cause upon compliance with the provisions of this article. [N.J.S.A. 18A:28-9.]
"The dominant concern of this provision is that fiscal emergencies may warrant layoffs even of tenured teachers." Old Bridge Bd. of Educ. v. Old Bridge Educ. Ass'n., 98 N.J. 523, 531 (1985). Accordingly, a reduction in force, whether of tenured or non-tenured teachers, if done for reasons of economy, is entirely within the authority of the school board. Jamison v. Morris Sch. Dist. Bd. of Educ., 198 N.J. Super. 411, 414-15 (App. Div. 1985). Also, because "a reduction in force is nonnegotiable and nongrievable[,]" In re Maywood Bd. of Educ., 168 N.J. Super. 45, 55 (App. Div. 1979), certif. denied 81 N.J. 292 (1979), it supersedes collective negotiation provisions.
It is not disputed that N.J.S.A. 18A:6-9 vests the Commissioner of Education with "jurisdiction to hear and determine, without cost to the parties, all controversies and disputes arising under the school laws[.]" In general, disputes involving teachers are controversies under the school laws. Winston v. Bd. of Educ. of S. Plainfield, 125 N.J. Super. 131, 140 (App. Div. 1973), aff'd 64 N.J. 582 (1974). However, the issue must be cognizable within the expertise of the Commissioner.
"'Under the doctrine of primary jurisdiction, when enforcement of a claim requires resolution of an issue within the special competence of an administrative agency, a court may defer to a decision of that agency.'" Archway Programs, Inc. v. Pemberton Twp. Bd. of Educ., 352 N.J. Super. 420, 425 (App. Div. 2002) (quoting Campione v. Adamar of N.J., Inc., 155 N.J. 245, 263 (1998)). In this way, "'[t]he doctrine of primary jurisdiction, like that requiring exhaustion of administrative remedies, promotes proper relationships between courts and regulatory agencies.'" Ibid.
Our examination of the causes of action asserted in plaintiff's complaint is pivotal to determine the question of jurisdiction. Plaintiff argues his case seeks to enforce contract claims and constitutional rights, and no school law issues are presented. Therefore, review of this action is best left to the judiciary. Conversely, the Board asserts plaintiff is challenging its managerial authority to implement a reduction in force, an issue within the primary jurisdiction of the Commissioner. We briefly review each of the stated claims.
In the first count of his complaint, plaintiff states:
41. The plaintiff is a tenured Administrator in the Elizabeth School System . . . . Pursuant to the Settlement Agreement [plaintiff] was to retain his tenure rights as to the position of vice principal .
43. In addition the plaintiff is a tenured Administrator. The law does not permit a tenured Administrator to be demoted to the position of teacher. Rather, a tenured Administrator would be allowed to bump someone with less seniority and return to his last tenured position.
The second count of the complaint alleges violation of 42 U.S.C.A. §
1983, stating the demotion was "due to [plaintiff's] political
affiliation thereby violating his right[s] of free spe[ech] and
political association" guaranteed by the federal
Constitution. The third count asserts conspiracy to commit the civil
rights violation. The fourth count states that "[a]s a result of 
plaintiff's refusal to respond to the systematic solicitation and
coercion to purchase and/or sell tickets to fundraisers designed to
subsidize the [Board's] political agenda" the agreement was breached
and a hostile work environment, prohibited by the Law Against
Discrimination (LAD), N.J.S.A. 10:5-1 to -49, was created. The fifth
count states plaintiff was demoted after he exercised his First
Amendment rights in declining to extend his financial support for the
political agenda of defendants. Finally, the last count*fn4
seeks damages for intentional infliction of emotional
At first blush, it might appear that the complaint's causes of action for breach of contract, LAD, civil rights and tort are purely legal. We turn to a review of the Board's arguments, considering whether the NJEL is implicated in this matter.
Defendant views the dispute as a challenge to its authority to implement a reduction in force. Alternatively, plaintiff urges his complaint requires examination of the Board's conduct violating his constitutional rights of free speech and association, along with its breach of a binding contract, all of which are legal issues beyond the purview of the Commissioner's jurisdiction. We do not agree with either party's broad proposition.
As to the Board's contention, plaintiff's claims on their face are legal. It is undeniable that "the sweep of the Department's interest and the Commissioner's jurisdiction does not extend to all matters involving boards of education." Archway Programs, supra, at 424-25. In fact, "contract claims against boards do not arise under the school laws but rather from statutory or common law." Id. at 245. Such claims are appropriately adjudicated in the courts. Picogna v. Bd. of Educ. of Cherry Hill, 249 N.J. Super. 332, 335 (App. Div. 1991).
By the same token, underlying each of plaintiff's claims is the efficacy of the reduction in force as applied to plaintiff. In addition to his contention that the Board was politically motivated, rather than driven by reasons of economy, plaintiff challenges the Board's authority to implement the staff reduction. Such a contention is reviewable by the Commissioner. Also, plaintiff's allegation that he cannot be placed in a teaching position because he was a tenured administrator involves the interplay of seniority, tenure and a reduction in force, all of which fall within the primary jurisdiction of the Commissioner.
Seeking to defeat the application of the Commissioner's primary jurisdiction, plaintiff emphasizes his claims are grounded on constitutional violations. We do not agree that assertion of constitutional deprivations preclude the Commissioner's review of issues related to the reduction in force.
"Administrative agencies are clearly empowered to determine issues within their jurisdiction even though the resolution of those issues implicates constitutional claims." Desilets ex rel. Desilets v. Clearview Reg'l Bd. of Educ., 137 N.J. 585, 595 (1994) (citing Christian Bros. Inst. v. N. N.J. Interscholastic League, 86 N.J. 409, 416 (1981) (noting "[a]dministrative agencies have power to pass on constitutional issues . . . when relevant and necessary to resolution of a question concededly within their jurisdiction")); Hunterdon Cent. High Sch. Bd. of Educ. v. Hunterdon Cent. High Sch. Teachers' Ass'n, 174 N.J. Super. 468, 474-75 (App. Div. 1980), (ruling "administrative agencies are competent to pass upon constitutional issues germane to proceedings before them"), aff'd o.b., 86 N.J. 43 (1981). We have held that "the bare assertion or generalized allegations of infringement of a constitutional right does not create a claim of constitutional dimensions." Winston, supra, 125 N.J. Super. at 144.
In examining his complaint, we cannot fully assess plaintiff's deprivation of constitutional rights claims as they are stated in conclusory terms. For example, he alleges: "Defendants seek to demote plaintiff due to his political affiliation thereby violating his right of free spe[ech] and political association guaranteed by the First Amendment of the United States Constitution." Plaintiff's assertion is not grounded on specific facts, but rests on an assumption that, as to him, the reduction in force, which eliminated all vice principal positions and many supervisors, was rooted in the 2000 political animus. Plaintiff also states his rights were infringed because he "refused to provide financial support to the political faction of the Board of Education and the individual defendants." This assertion is neither explained nor supported.
Also, we cannot ignore that plaintiff's allegations are countered by the Board's uncontroverted claim of the District's huge loss of revenue necessitating spending cuts, as well as the breadth of the lay-offs. Unlike the complaint in Winston, plaintiff's complaint does not verify in any detail sufficient facts to link the 2010 reduction in force to the rivalry of a decade ago. Plaintiff recites no instances explaining how his constitutionally protected conduct purportedly triggered the Board's retaliation.
Similarly, the civil rights, LAD and tort allegations are premised on the contention that the reduction in force was for untoward reasons, other than budgetary constraints. Each of these causes is dependent on a finding that the reduction in force as applied to plaintiff was invalid.
Finally, the interpretation of the 2005 agreement settling the federal civil rights matter is also entwined with the Board's issuance of a reduction in force. Plaintiff believes the agreement precludes his inclusion in the reduction in force. The Board maintains the statutory obligation to manage the school district and to issue the reduction in force trumps plaintiff's contract claims. However, the 2005 agreement equates to an individual employment contract between plaintiff and a public employer. To the extent that plaintiff's enforcement of that agreement is connected to the reduction in force, it touches upon the NJEL.
Were the issues confined to the Board's action in implementing a reduction in force, the Commissioner's review would be primary. Similarly, if the question centered solely on contract interpretation, judicial resolution would be proper.*fn5
Ridgefield Park Educ. Ass'n, supra, 78 N.J. at 155. Here, plaintiff's claims are neither strictly legal nor solely NJEL based, but are mixed. To illustrate this point as it related to this matter, we provide some examples.
Plaintiff argues the plain language of the agreement reflects that he settled the federal action in exchange for being granted a supervisory position for life. That interpretation raises questions of whether statutory or regulatory provisions render such an assertion an unenforceable circumvention of educational policies. So too, excluding plaintiff from the reduction in force may intrude upon collective negotiation considerations involving more senior teaching staff members. Cf. Mount Holly Twp. Bd. of Educ. v. Mount Holly Twp. Educ. Ass'n, 199 N.J. 319, 322 (2009) (holding when provisions in an individual employment contract conflict with the terms in a collectively negotiated agreement (CNA) and diminish or interfere with rights provided by the CNA, the language in the individual contract must yield to the collective agreement). Finally, if a breach of contract is found, the fiscal impact on district programs along with the Board's obligation to uphold the public trust must be weighed when considering any devised remedy. See South Plainfield Bd. of Educ. v. South Plainfield Educ. Ass'n ex rel. English, 320 N.J. Super. 281, 296 (App. Div.), certif. denied, 161 N.J. 332 (1999). All of these questions touch upon the propriety of the reduction in force.
In Archway Programs, supra, we discussed the benefit of the court's deferring its exercise of jurisdiction to allow the agency to determine issues within its primary jurisdiction, stating "it may be appropriate, in order to avoid piecemeal adjudication or duplicative, anomalous or contradictory results, for a court to defer in its jurisdictional exercise, even if only temporarily, while the administrative agency with the primary interest sorts out the issues and the claims." 352 N.J. Super. at 425. Consequently, the benefit of agency expertise is preferred in the first instance.
In the balance, we part company with the trial judge who viewed this matter as a mere action to enforce a settlement agreement. Instead, we determine that underpinning the legal issues is an examination of the Board's conduct in approving a reduction in force. In this regard, we conclude the Commissioner's prior review is essential so that a factual record will be made regarding whether the Board can demonstrate "sound educationally based reasons" for its decision to implement a reduction in force, how the affected positions were chosen, and whether its action complies with the authorizing statute.
The Commissioner's review regarding the correctness of the reduction in force will guide the court in respect of the other claims. If the reduction of force is not sustainable, plaintiff will be returned to his position receiving the back pay and benefits he seeks. He may then decide whether he has a right to additional damages or may conclude the litigation. Likewise, if the Commissioner determines plaintiff's inclusion in the reduction in force was proper, many of plaintiff's allegations resting on the Board's ulterior motives for the staff shrinkage disappear. If plaintiff's other contentions remain, the parties will return to the court, which will be informed by the agency's factfinding regarding the Board's exercise of its managerial authority.
As we concluded in Archway Programs, supra,:
[O]ut of respect for the subject matter interest of a coordinate branch of government and to promote consistency of result, the trial court should stay its hand regarding all interrelated issues of law between the parties until the Commissioner and the Department have resolved all those questions that are within their subject matter purview and amenable to disposition by administrative order or directive. [352 N.J. Super. at 431.]
Accordingly, the Commissioner's review as to the school law issues should precede review by the Law Division. See Muise v. GPU, Inc., 332 N.J. Super. 140, 160 (App. Div. 2000) (holding that a court should exercise its discretion to defer to the primary jurisdiction of an agency where failure to do so would be inconsistent with the statutory scheme conferring regulatory authority on the agency).
We leave for future determination whether plaintiff's literal reading of the agreement is enforceable or whether the Board's actions fall within its express and implied statutory powers to terminate his position when implementing a reduction in force attributed to dire financial constraints despite the terms of the agreement. See e.g., Miskowitz v. Union Cnty. Utils. Auth., 336 N.J. Super. 183, 197 (App. Div.) (concluding "governmental efficiency and economy may in some circumstances trump private contractual rights"), certif. denied sub. nom. Pappas v. Union Cnty Utils. Auth., 168 N.J. 291 (2001). See also Walsh v. State, 290 N.J. Super. 1, 16 n. 4 (App. Div. 1996) (stating "[e]ven when a governmental agency has the statutory authority to enter into a fixed term employment contract, it still in some circumstances may abolish the position in order to promote economy and efficiency in governmental operations"), rev'd on other grounds, 147 N.J. 595 (1997).
We briefly address whether injunctive relief was properly afforded. We conclude plaintiff has failed to demonstrate the requisite irreparable harm to support an injunction. Crowe, supra, 90 N.J. at 132.
Despite plaintiff's thin assertions of constitutional deprivations, which we have addressed above, his claims are compensable by a damage award. The loss of salary, pension contributions and benefits are all financial and thus measurable. Our review of this record determines plaintiff has failed to assert facts to support his claims of irreparable harm, justifying equitable injunctive relief. This alone defeats injunctive relief. Ibid.
The court's discretion was misapplied. The order must be vacated.
In conclusion, we reverse the temporary injunction restraining the Board from enforcing its reduction in force and remand for entry of an order temporarily transferring the matter to the Commissioner of Education, in which the trial court shall retain jurisdiction to resolve any legal issues remaining once all the administrative proceedings bearing upon the current issues between the parties have been concluded. Archway Programs, supra, 352 N.J. Super. at 432.
Reversed and remanded.