On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1792-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 5, 2011
Before Judges A. A. Rodriguez and Ashrafi.
Plaintiff John Holden appeals from a November 24, 2010 order of the Law Division dismissing his complaint in lieu of prerogative writs. Plaintiff sought to compel his former employer, defendant Borough of Matawan, to provide medical insurance coverage for him permanently at no cost pursuant to a borough ordinance applicable to qualified retirees from borough employment. We affirm the order dismissing his complaint for the reasons stated in the written opinion of Judge Lawrence Lawson dated October 26, 2010.
We add the following to provide context for our analysis. Plaintiff was employed by the Borough of Matawan as a police dispatcher beginning on August 1, 1985. He was injured twice in work-related incidents, first in March 2004 and a second time in August 2004. He went on sick leave, and he applied for and received workers' compensation benefits.
On May 26, 2005, before plaintiff ever returned to work, the borough took action as a cost-saving measure to eliminate his position and that of the other police dispatchers employed by the borough. Plaintiff's status as an employee of the borough ended as of July 1, 2005. Plaintiff took no action at that time to challenge termination of his employment. Instead, he applied for an accidental disability pension under the Public Employees' Retirement System (PERS). On June 21, 2006, PERS denied plaintiff's application for accidental disability but granted him ordinary disability retirement. He began to receive pension benefits effective retroactively as of September 1, 2005.
In October 2006, plaintiff submitted a request to the borough for continuation of lifetime medical insurance benefits at no cost to himself. By letter dated November 20, 2006, the borough administrator denied plaintiff's request, stating that he had not retired as an employee of the borough because his employment had been terminated before the date of his PERS disability retirement. Again, plaintiff took no action at that time to challenge the borough's decision.
Three-and-a-half years later, on April 6, 2010, plaintiff filed his complaint in lieu of prerogative writs challenging the denial of medical insurance benefits. He cited borough ordinance section 9-4.8, which states in relevant part:
Employees who have retired from the Borough pursuant to public employment pension programs, and who shall have also served twenty-five (25) years of active service with the Borough, and who also qualify for Medicare coverage shall be provided with paid medical-surgical-hospital insurance coverage supplementary to Medicare coverage. . . .
Employees who retire under a disability pension shall not be required to meet service and Medicare qualification requirements to receive paid medical benefits from the Borough. .
We agree with the determination of defendant borough and Judge Lawson that plaintiff did not meet the requirements of this ordinance. He did not retire under a disability pension at a time when he was an employee of the borough. Rather, his employment was terminated while he was still on sick leave. The termination of his employment, along with that of others, was a cost-cutting measure that plaintiff did not litigate or otherwise challenge at the time it was taken. Nor does he argue on this appeal that his termination was unlawful.
We also agree with the conclusion of Judge Lawson that plaintiff's prerogative writs action was untimely filed. Rule 4:69-6(a) fixes a forty-five day time limit from the date that a plaintiff's cause of action accrues for the filing of a complaint in lieu of prerogative writs challenging official action. While subsection (c) of the same rule provides that the time may be enlarged when "the interest of justice so requires," nothing in this case meets that standard. Judge Lawson's detailed discussion of the case law that applies to enlargement of time to file a prerogative writs action ...