Balzano v. Township of North Bergen, Civ. A. No. 86-1284.

• Citation: 649 F. Supp. 807
• Decision Date: 23 December 1986
• Docket Number: Civ. A. No. 86-1284.
• Parties: Carmine BALZANO, Plaintiff, v. TOWNSHIP OF NORTH BERGEN, North Bergen City Council, Mayor of North Bergen, Defendants.
• Court: U.S. District Court — District of New Jersey

649 F. Supp. 807

Carmine BALZANO, Plaintiff, v. TOWNSHIP OF NORTH BERGEN, North Bergen City Council, Mayor of North Bergen, Defendants.

Civ. A. No. 86-1284.

United States District Court, D. New Jersey.

December 23, 1986.

Schneider, Cohen, Solomon, Leder & Montalbano by Sheldon Lee Cohen, Jersey City, N.J., for plaintiff.

Hellring, Lindeman, Goldstein, Siegal & Greenberg by Richard D. Shapiro, Newark, N.J., for defendants.

OPINION

DEBEVOISE, District Judge.

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 27, 1984, Lieutenant Edward Delaney, who apparently was in charge of reviewing a terminated police officer's request for back pay, approved $12,000 in sick leave pay and $16,000 vacation pay. Balzano, as noted above, had been dismissed from his job in July of 1984.

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 at the time he had absolutely no information regarding Balzano's claim to back pay.

The attorney further stated in his letter of December 10 that it was his understanding that the North Bergen Police Department had at least partially substantiated the accumulated pay due Balzano. Finally, Oury also stated that it was the usual and customary procedure to have someone in the Police Department review a terminated police officer's claim and "advise in writing the Commissioners how much sick time, vacation time, etc., was due to the officer. At the time that I wrote Balzano's attorney, I did not have that information in my possession."

It was not until January 16, 1986 that the Township's attorney, Mark Ruderman, Esq., told plaintiff that "it is my client's position that no monies are due and owing to Mr. Balzano."

Plaintiff has submitted an affidavit stating that "immediately prior" to commencing suit in this court on April 3, 1986, he requested the PBA President, Timothy Kelly, to file a grievance on Balzano's behalf to recover the back pay due him. Balzano further asserts in his affidavit that Kelly told him that there were no grounds for such a grievance and that therefore no grievance would be instituted.

Thereafter, Balzano filed this action on April 3, 1986. He alleges in his complaint that the defendants "misused their official power and authority to deprive Plaintiff of his property without due process of law," that they "were aware of a sick leave ordinance which they had established" and of the collective bargaining agreement "which explicitly provided for calculation of sick pay, overtime pay and vacation pay," and that they "intentionally and maliciously and with a willful and wanton disregard for plaintiff's rights refused to pay Plaintiff monies due and owing him."

The Township now moves to dismiss the complaint for failure to state a claim (1) under 42 U.S.C. § 1983, relying on the Supreme Court's decision in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), and (2) because the statute of limitations has run on all of plaintiff's claims arising prior to April 3, 1984. The plaintiff has cross-moved for summary judgment in his favor.

Discussion

Statute of Limitations

In Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 524 (1985), the Supreme Court held that for statute of limitations purposes, all Section 1983 claims are to be characterized as personal injury actions regardless of the facts contained in the underlying cause of action. Accordingly, in every Section 1983 suit the courts will look to the law of the forum state to determine the statute of limitations for personal injury actions. In New Jersey, N.J.S.A. 2A:14-2 sets a two year period for personal injury actions.

In determining when a cause of action accrues under § 1983, however, I must look to federal rather than state law. Cox v. Stanton, 529 F.2d 47, 50 (4th Cir.1975); Lavelli v. Listi, 611 F.2d 1129, 1130 (5th Cir.1980); Kline v. North Texas State University, 782 F.2d 1229, 1232 (5th Cir.1986). Plaintiff alleges that during the period from 1971 through 1984 he accumulated $40,000 of vacation pay, and from 1971 to 1979 he accumulated $48,000 of overtime pay and $12,000 in sick leave pay. Defendants maintain that since plaintiff filed his complaint on April 3, 1986 all of his claims arising prior to April 3, 1984 are barred by the applicable statute of limitations except his claim for sick leave pay, which defendants concede would not be time-barred. (The Township ordinance states that accumulated sick leave shall not be paid until after the termination of employment.)

It must be determined when Balzano's claims to vacation pay and overtime pay accrued. The Township contends that plaintiff's claims accrued at the time they fell due and that they fell due on the next regular payday (which was prior to April 3, 1984). In support thereof, they cite to several cases which hold that claims for overtime compensation accrue at each regular payday immediately following the work week during which services were rendered, citing Angulo v. Levy Co., 568 F.Supp. 1209, 1215 (N.D.Ill.1983), aff'd, 757 F.2d 806 (7th Cir.1985); Gruca v. United States Steel Corp., 360 F.Supp. 38, 48 (E.D.Pa. 1973), rev'd on other grounds, 495 F.2d 1252 (3d Cir.1974); Reid v. Solar Corp., 69 F.Supp. 626 (N.D.Iowa 1946); and Barrett v. National Malleable and Steel Castings Co., 68 F.Supp. 410 (W.D.Pa.1946).

Three of the four cases which the Township cites were brought under the Fair Labor Standards Act ("FLSA"), not under 42 U.S.C. § 1983. This fact is significant because those cases specifically state that under the FLSA, a cause of action accrues at the next regular payday. See, e.g., Angulo, 568 F.Supp. at 1215. There is nothing to suggest that this is the general rule in cases not involving the FLSA. (The fourth case cited by the Township, which arose under the Military Selective Service Act, simply held that where a debt is payable in installments, the statute of limitations begins to run as to each installment when it falls due. See Gruca, 360 F.Supp. at 48.)¹

Under the facts of the case at bar, I find more persuasive the cases cited by plaintiff which hold that a...