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Priore v. Edison Township

Superior Court of New Jersey, Appellate Division

May 22, 2013

SALVATORE DEL PRIORE, Plaintiff-Appellant,
EDISON TOWNSHIP, Defendant-Respondent.


Argued April 30, 2013

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-0172-12.

Scott A. Gorman argued the cause for appellant.

Richard J. Mirra argued the cause for respondent (Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys; Mr. Mirra, of counsel and on the brief).

Before Judges Alvarez, Waugh, and St. John.


Plaintiff Salvatore Del Priore appeals the Law Division's March 29, 2012 order dismissing his complaint seeking a property-tax refund from defendant Edison Township. We affirm.


The underlying facts are set forth in the trial judge's reported decision. Del Priore v. Edison Twp., 26 N.J.Tax 502, 507-12 (Law Div. 2012).

The gravamen of plaintiff's complaint is that the Township granted all qualified veterans who applied for the exemption before him a refund of property taxes retroactive to the effective date of their disability as determined by the United States Department of Veterans Affairs ("VA"), and that he has been treated differently because he was not granted a fully retroactive refund. Plaintiff contends that the Township's denial of his request for a refund of taxes to the effective date of his disability is contrary to the Township's long-standing past practice and constitutes a violation of the Equal Protection Clause, U.S. Const. amend. XIV and N.J. Const. art. I, ¶ 1.
The court finds the following facts. On April 20, 2006, the VA issued a letter setting forth its determination that plaintiff's wartime service-connected disability was totally disabling, and that the effective date of the disability was September 17, 1997. On April 24, 2006, pursuant to N.J.S.A. 54:4-3.30 to 54:4-3.34, plaintiff filed an application for full exemption from local property taxes for his residence. The municipal assessor granted the application for tax year 2006 on the same date that the application was filed. She wrote to plaintiff and advised him that his application had been granted and also stated that, "I am advising the Tax Collector to arrange a refund of taxes you have paid for the 2006 tax year." By resolution adopted on May 10, 2006, the Edison Township Municipal Council ("Township Council") directed the refund to plaintiff of the first quarter real property taxes for tax year 2006, in the amount of $1, 966.78.
By letter dated June 6, 2006, plaintiff and his wife wrote to the Township Council and requested a refund of local property taxes paid retroactive to September 17, 1997, the date that plaintiff became 100% permanently and totally disabled according to the VA. Their letter noted that the Township Council had, in the past, granted retroactive refunds of taxes back to the effective date of 100% permanent and total disability, and enclosed documentation as to grants of retroactive tax refunds to two other veterans.
By resolution adopted on June 28, 2006, the Township Council authorized a refund of plaintiff's 2005 taxes in the amount of $7, 615.12.

Anthony Cancro, Edison's former business administrator, wrote to plaintiff and his wife on October 31, 2006. According to the letter, Mr. Cancro was writing at the request of the council president to address plaintiff's request for a tax exemption retroactive to September 17, 1997. According to the letter, the Township had interpreted the veteran's exemption statute as not requiring the refund of taxes to a veteran retroactive to the date on which the VA deems the veteran to have become permanently and totally disabled, but rather to the date on which the VA issues its written decision, which in plaintiff's case was April 20, 2006. Mr. Cancro referred to an opinion issued by the New Jersey Division of Taxation, which was apparently not included with his letter and has not been made available to the court. Finally, the letter stated:

Although the Township Council, in keeping with past practices, approved an additional refund of one year, going beyond this point places an undue burden on the Township's non-exempt taxpayers and finds little support as a matter of law. Further, I believe the Township has acted in the spirit of the law and has compensated you accordingly.
The letter concluded by denying any further retroactive payment.
Plaintiff and his wife responded by writing to Mr. Cancro, disputing his assertion that the Township had interpreted the statute as requiring relief only to the date of the written determination by the VA. They again enclosed documentation relating to two additional Edison residents who had both received recognition of tax exemption and tax refunds retroactive to the effective date of total and permanent disability as determined by the VA.
The first such grant was to a veteran who had received a September 29, 2005 determination from the VA that he was 100% totally and permanently disabled as a consequence of a wartime service-connected disability effective November 13, 2003. The Township council passed a resolution authorizing a retroactive refund of taxes for the first three quarters of 2005, and a second resolution refunding taxes back to November 13, 2003, the effective date of his total and permanent disability. The total refund was $10, 867.70.
The second case documented by plaintiff and his wife was that of a veteran who in a letter from the VA dated June 2, 2005 was determined to be totally and permanently disabled effective November 1, 2004. The Township Council subsequently passed two resolutions granting the veteran tax refunds retroactive to the effective date of his total and permanent disability in the total amount of $1, 858.12.
There was apparently no further response from Mr. Cancro, and on December 11, 2006, plaintiff and his wife wrote to the Township Council, again requesting retroactive exemption and tax refunds to the effective date of his total and permanent disability. In that request, they documented twelve other veterans who had received tax refunds retroactive to the effective date of their total and permanent disability. Unlike plaintiff, however, in most of these cases the gap between the date of the VA determination and the effective date of the total and permanent disability was less than two years. In one case, it appears to have been two years, eight and one half months. The amounts of the refunds varied, with one veteran receiving a greater total refund ($13, 570.98) than had been refunded to plaintiff ($9, 581.90), and the rest receiving less.
Since the filing of this action, plaintiff has, through requests to the Township made pursuant to the Open Public Records Act, N.J.S.A. 47:1A-1 to -13 ("OPRA"), located documentary evidence of about twenty more retroactive refunds granted to qualified, totally disabled veterans back to the mid-1950's. In one instance, the Township Council granted a refund for a period longer than had been requested by plaintiff. By determination dated October 27, 1994, Clifford Miller received a determination of total disability effective May 27, 1982. In addition to a refund for the remainder of 1994, the Township Council granted Mr. Miller's widow a refund of taxes in the amount of $19, 162.91 for the period May 27, 1982 through 1993 by resolution adopted on November 23, 1994. In two cases, the refund amount was greater than received by plaintiff. The Township granted a retroactive refund in 1984 to Theodore Baskerville for about four years of property tax payments, totaling about $11, 000, with certain other amounts refunded to the veteran by the State. In 1988, the Township Council granted a refund to John Teller of five years of property tax payments with a total amount, $15, 217.47, exceeding that paid to the plaintiff.
Following plaintiff's letter of December 11, 2006, the assessor wrote to plaintiff on January 3, 2007, stating that the Township Council had decided to revisit his request for a retroactive refund. There was apparently no further communication from defendant as to the outcome of this reconsideration of plaintiff's further request for a refund of taxes retroactive to September 17, 1997. It is clear from a February 7, 2007 memo from Mr. Cancro to members of the Township Council and minutes from Township Council meetings that plaintiff's request for further retroactive relief precipitated discussions regarding the codification of a policy to address the issue, rather than a reconsideration of his request.
On September 26, 2007, the Township Council adopted an ordinance, No. 1584-2007, effective on October 23, 2007, limiting a retroactive property tax refund to the current year and the prior year, but in no event greater than a twenty-four month period in the aggregate, for persons entitled to the veteran's exemption under N.J.S.A. 54:4-3.30. The ordinance recited that the reason for the limitation was that retroactive refunds have a financial impact on the township that [has] to be compensated for by other taxpayers. Plaintiff does not contend, nor have there been any proofs offered, that defendant granted a retroactive refund for a period exceeding that provided by the ordinance to any totally disabled veteran who became eligible for exemption after plaintiff. From the information collected by plaintiff through OPRA, it appears that three qualified veterans were granted retroactive refunds subsequent to plaintiff. The refunds were for periods ranging from twelve to twenty-one months, and were for amounts ranging from $5, 305.52 to $9, 466.71.
At some point, plaintiff inquired as to whether or not the Township Council had reconsidered his request, as the assessor had indicated it would. He was supplied with a copy of the ordinance in August 2008. Plaintiff appealed the denial of the retroactive exemption to the Middlesex County Board of Taxation on or about September 8, 2008. The Board issued its judgment on September 18, 2008, dismissing the petition for lack of jurisdiction and served it on September 23, 2008. Plaintiff filed his appeal in the Tax Court on October 30, 2008. He seeks an additional refund of $45, 896.69 for local property taxes paid for the period September 17, 1997 through December 31, 2004. He has indicated that he is willing to extend payment of the refund over a period of forty-eight months.
[(Footnotes omitted).]

On October 29, 2008, Del Priore filed a complaint in the Tax Court seeking a property tax refund retroactive to September 1997. The Township moved for summary judgment in February 2009, arguing that "any refund of tax payments made before the [disability] claim was filed was discretionary" under N.J.S.A. 54:4-3.32. Del Priore, supra, 26 N.J.Tax at 513.

The Tax Court judge denied the motion without prejudice. In her later decision, the judge explained that she had "concluded that plaintiff had established that he had been treated differently than prior claimants, and . . . that an evidentiary hearing was desirable in order to establish the Township's reasons for its actions." Ibid.

In June 2009, Del Priore requested that the matter be adjourned so that he could pursue settlement options. On March 17, 2011, there was an evidentiary hearing. The Township's tax assessor, who testified for the Township, confirmed that Del Priore's property taxes had been refunded retroactive to January 1, 2005, but could not testify to the reasons for the Township's decision to limit the refund, which apparently had been reached in a closed council session. During the hearing, Del Priore, appearing pro se, sought to amend his complaint to allege that the Township discriminated against him based on ethnicity, citing the fact that he was born and raised in Italy and another applicant whose claim was denied had a similar background. The judge refused to allow the amendment because of the age of the case and the tenuous nature of Del Priore's claim. The Township then renewed its motion for summary judgment, and the judge reserved decision.

The judge subsequently concluded, sua sponte, that the Tax Court lacked the authority to grant the relief sought by Del Priore. She held that "relief in the nature of mandamus, viz., to compel the governing body to exercise discretionary functions, [is], in the first instance, cognizable only in the Law Division of the Superior Court." Id. at 516 (alteration in original) (quoting Alid, Inc. v. Twp. of N. Bergen, 180 N.J.Super. 592, 603 (App. Div.), appeal dismissed, 89 N.J. 388 (1981)) (internal quotation marks omitted).

On January 3, 2012, the Chief Justice entered an order transferring the Tax Court case to the Law Division and temporarily assigning the Tax Court judge to the Law Division "for the specific limited purpose of adjudicating [Del Priore's] claims." The judge notified the parties of the transfer and her temporary assignment in February.

In a detailed written opinion issued March 29, 2012, the judge granted the Township's motion for summary judgment and dismissed Del Priore's complaint. Id. at 508. This appeal followed.


On appeal, Del Priore argues that the trial judge was improperly assigned to the Law Division, that she abused her discretion in denying his motion to amend the complaint, and that the decision on the merits of his claim was incorrect as a matter of law.


The issue of the assignment of the Tax Court judge to the Superior Court for the purpose of this case is raised for the first time on appeal. Although the Chief Justice's assignment order did not rely on the authority granted by N.J.S.A. 2B:13-12, Del Priore argues that the statute is unconstitutional.[1]According to the text of the order, however, the assignment was made pursuant to Alid, Inc. v. Town of North Bergen, 89 N.J. 388 (1981), which incorporated an order providing for such assignments based on the Chief Justice's constitutional authority. See also Twp. of W. Milford v. Garfield Rec. Comm., Inc., 91 N.J. 233, 234 (1982).

We decline to consider the issue of the statute because it was not the basis of the Chief Justice's order and was not raised in the trial court. See State v. Hill, 110 N.J.Super. 370, 375 (App. Div. 1970) (refusing to consider the issue raised with respect to the assignment of county district court judge to the Superior Court when first raised on appeal). In addition, our jurisdiction as an intermediate appellate court does not include reviewing the validity of orders issued by our Supreme Court. We nevertheless note that the Tax Court judge was, at the very least, a de facto judge. Ibid. (citing State v. Pillo, 15 N.J. 99, 103 (1954); Curtis v. Joyce, 90 N.J.L. 47, 48 (Sup. Ct. 1917), aff'd o.b., 91 N.J.L. 685 (E. & A. 1918)).


We find no merit in Del Priore's argument that the judge abused her discretion in denying his motion to amend the complaint during the evidential hearing. Rule 4:9-1 provides that, once a responsive pleading has been served, a complaint may be amended "only by written consent of the adverse party or by leave of court which shall be freely given in the interest of justice." Although leave to amend is to be liberally granted, Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006), a decision on a motion to amend "is generally left to the sound discretion of the trial court, and its exercise of discretion will not be disturbed on appeal, unless it constitutes a 'clear abuse of discretion.'" Franklin Med. Assocs. v. Newark Pub. Sch., 362 N.J.Super. 494, 506 (App. Div. 2003) (citation omitted) (quoting Salitan v. Magnus, 28 N.J. 20, 26 (1958)).

The judge denied the motion to amend because Del Priore sought to introduce "an entirely new" and "last minute" claim. Noting that Del Priore had filed his complaint more than two years earlier, the judge explained that she would not permit the proposed amendment based on Del Priore having "now found somebody with another Italian surname, who he claims was [also] treated differentially."

In her subsequent written opinion, the judge expanded on her reasons as follows:

In a last minute attempt to require that this court apply strict scrutiny to his claim . . . plaintiff contended for the first time in his opposition to the Township's renewed motion for summary judgment that he has been discriminated against because he was "born, raised and educated in Italy." The only evidence of this claim is his uncertified statement that he and Anthony Funaro are the only Italian-born veterans qualified for exemption under the Act in the Township and that both he and Mr. Funaro were denied fully retroactive refunds of property tax. As plaintiff also stated, however, Mr. Funaro's claim, as well as the claim of two other (apparently non-Italian-born) veterans, were both filed after enactment of the ordinance limiting retroactive refunds. All received only the limited retroactive refund permitted by the ordinance. The court concludes that plaintiff's recent claim is no more than a bare allegation not supported by the record, and does not merit further consideration.
[Del Priore, supra, 26 N.J.Tax at 518.]

We find no "clear abuse" of the judge's discretion in denying leave to amend given the posture of the case at the time Del Priore made the request.


Finally, Del Priore asserts that the trial judge erred in granting summary judgment even though he established, and the judge acknowledged, that "the Township had consistently followed a policy of granting full retroactive refunds to the effective date of disability of the Township's disabled war veterans." We disagree.

Because we are reviewing a grant of summary judgment, our review is de novo, applying the same standard governing the trial judge under Rule 4:46-2(c). Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 539-40 (1995); Chance v. McCann, 405 N.J.Super. 547, 563 (App. Div. 2009) (citing Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007)). In addressing a motion for summary judgment, a judge must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540; see also R. 4:46-2(c). We note that, in this case, the Township moved for summary judgment following an evidentiary hearing at which the judge took testimony from the Township assessor.

It is uncontested that, before Del Priore requested a refund for the period from 1997 through 2004, "it was the Township's de facto policy to grant a refund of taxes back to the date of effective disability to any eligible veteran who requested such a refund." Del Priore, supra, 26 N.J.Tax at 513. There is also agreement that the Township only enacted the ordinance limiting such payments after it had denied Del Priore the requested refund back to 1997. Id. at 519-20.

Del Priore asserts that he "reasonably relied on the belief" and "possessed a reasonable expectation" that the Township would continue to follow its longstanding policy. However, there is nothing in the record to suggest that Del Priore acted in detrimental reliance on a continuation of the Township's policy.

The law is clear that refunds of already-paid property taxes are discretionary under N.J.S.A. 54:4-3.32 (providing that municipalities "may" return property taxes already collected from an eligible veteran). We are satisfied, substantially for the reasons outlined by Judge Gail L. Menyuk in her thoughtful and comprehensive written opinion, that the Township's action to codify and limit its policy for making refunds was a constitutionally-permissible exercise of its statutory discretion, and that Del Priore's subjective expectations, based on the Township's earlier, more liberal de facto policy, do not support a prima facie case that his rights were violated or that equitable estoppel should be applied to compel a refund. Consequently, we find no error in the judge's decision granting summary judgment.


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